Leslie Wayne Smith v. Donald A. Dorsey, Warden, SNMCF Attorney General of The State of New Mexico, 30 F.3d 142, 10th Cir. (1994)
Leslie Wayne Smith v. Donald A. Dorsey, Warden, SNMCF Attorney General of The State of New Mexico, 30 F.3d 142, 10th Cir. (1994)
3d 142
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Before TACHA and EBEL, Circuit Judges, and ROGERS,** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Petitioner Leslie Wayne Smith appeals from a district court order adopting the
recommendation of the magistrate judge to dismiss his petition for a writ of
habeas corpus under 28 U.S.C. 2254. Reviewing the district court's legal
conclusions de novo and its factual findings for clear error, see Hill v.
Reynolds, 942 F.2d 1494, 1495 (10th Cir.1991), we affirm for the reasons
stated below.
Petitioner was tried without a jury in the district court for Lea County, New
Mexico, on two counts of distributing controlled substances. The evidence
showed he had served as intermediary in sales of narcotics and
methamphetamines to undercover officers. He relied on an entrapment defense,
claiming an informant the officers used to contact him had, unbeknownst to the
officers, surreptitiously supplied the drugs as well, rendering petitioner a mere
"conduit" for objectively impermissible police conduct. See generally Baca v.
State, 742 P.2d 1043, 1045-46 (N.M 1987). The trial court rejected the defense,
and petitioner's resulting conviction was affirmed by the New Mexico Court of
Appeals. He then filed the instant habeas petition, challenging his conviction
on several grounds: (1)ineffective assistance of trial counsel due to a conflict of
interest; (2)ineffective assistance of trial counsel due to inadequate
investigation regarding the availability of the government informant; (3)invalid
waiver of a jury trial; and (4)denial of due process through the trial court's
rejection of the entrapment defense. On this appeal, petitioner adds the
objection that the district court erred by not ordering an evidentiary hearing to
develop his habeas claims.
5
At the state level, petitioner did not raise this alternative ineffective assistance
claim until his post-conviction proceeding, and then did not seek review of the
trial court's denial thereof through the certiorari procedure provided in SCRA
1986, 5-802. The magistrate judge recognized this omission, noted that the time
for seeking state appellate review had long since passed, see Rule 5-802(G)(2)
(prescribing thirty-day period within which to file certiorari petition from denial
of post-conviction relief), and recommended denial of the defaulted claim
under the procedural bar principles set out in Dulin v. Cook, 957 F.2d 758, 759
(10th Cir.1992)(applying rule of anticipatory denial to find claim not presented
to Utah Supreme Court through similar certiorari procedure defaulted under
Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2557 n. 1 (1991)).
Although the magistrate judge raised this issue sua sponte, there is no due
process problem here, as petitioner had an opportunity to address the matter by
objecting to the magistrate judge's recommendation prior to the district court's
adoption thereof.3 See Hardiman v. Reynolds, 971 F.2d 500, 502-05 (10th
Cir.1992)(holding district court may sua sponte raise and apply procedural bar
defense, so long as habeas petitioner is afforded opportunity to respond).
10
The Dulin analysis relied on by the magistrate judge properly controls in the
present context. See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir.1993)
(applying Dulin in case involving failure to file timely certiorari petition with
New Mexico Supreme Court after denial of state habeas relief). Nevertheless,
on appeal, petitioner, who is represented by counsel, focuses exclusively on the
merits of the ineffective assistance issue and does not challenge any aspect of
the district court's disposition on procedural bar grounds. In the absence of any
allegations, below or on appeal, to even suggest the "cause and prejudice" or
"fundamental miscarriage of justice" necessary to excuse petitioner's default in
state court, see Coleman, 501 U.S. at ----, 111 S.Ct. at 2565, we will not disturb
the district court's determination of the issue.
11
13
Finally, we reject petitioner's contention that the district court should have
granted him an evidentiary hearing. The district court properly concluded that
petitioner's claims were facially insufficient to warrant relief and, therefore, did
not justify a hearing. See Church, 942 F.2d at 1510; see, e.g., Hopkinson v.
Shillinger, 866 F.2d 1185, 1205, 1211-12, 1217 (10th Cir.1989), cert. denied,
497 U.S. 1010 (1990).
14
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
**
Honorable Richard D. Rogers, United States District Judge for the District of
Kansas, sitting by designation
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
The cases collected above involve valid guilty pleas, which simultaneously
waive several constitutional rights of the criminal defendant, including the right
to a trial by jury. See Parke v. Raley, 113 S.Ct. 517, 523 (1992). A fortiori, they
identify circumstances that are insufficient to warrant invalidation of a jury
waiver alone