(D.C. No. 6:10-CV-01240-MV-LFG) (D. N.M.)
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Harris L Hartz Circuit Judge
Applicant Gabriel Ayala, a New Mexico state prisoner, filed a pro se application for relief under 28 U.S.C. § 2254 in the United States District Court for the District of New Mexico. The district court denied his application. Proceeding pro se and in forma pauperis, Applicant now seeks a certificate of appealability (COA) from this court to appeal the district court's decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of § 2254 relief). We deny the application for a COA and dismiss the appeal.
In 2004 Applicant pleaded guilty to three first-degree-felony and four third-degree-felony counts of child abuse, see N.M. Stat. Ann. § 30-6-1(D)(1), (2) (2001), all related to alleged abuse of his two-month-old daughter Alicia. The state district court sentenced Applicant to a total of 30 years' imprisonment. It further found that each count constituted a "serious violent offense" under New Mexico's Earned Meritorious Deduction Act (EMDA), a finding which limits a prisoner's accrual of good-time credits to four days per month of time served instead of the typical 30 days. Id. § 33-2-34(A)(1) (1999). The New Mexico Court of Appeals affirmed the conviction and sentence, see State v. Ayala, 140 P.3d 547 (N.M. Ct. App. 2006), and the New Mexico Supreme Court denied a petition for a writ of certiorari, see id.
Applicant applied for postconviction relief in the state trial court, asserting, among other things, that his counsel, Robert Cooper, had been constitutionally ineffective. The court conducted an evidentiary hearing and in March 2010 granted partial relief. It ruled that Cooper had been ineffective at sentencing by failing to present "certain compelling evidence" that would have caused the court to impose a lesser sentence. R., Vol. I at 235. But it rejected Applicant's other complaints about Cooper's performance. It set the matter for resentencing and on April 8, 2010, entered an amended judgment imposing a sentence of 18 years' imprisonment. It again found that all the counts were serious violent offenses. The New Mexico Supreme Court denied Applicant's petition for a writ of certiorari seeking review of the partial denial of postconviction relief. Applicant then appealed the amended judgment. The court of appeals affirmed, and the New Mexico Supreme Court again denied Applicant's petition for a writ of certiorari.
In December 2010 Applicant filed his § 2254 application in federal district court, asserting four grounds for relief. First, he argued that Cooper had rendered ineffective assistance leading up to his guilty plea by failing to (1) challenge a confession he gave to police and officials with the New Mexico Children, Youth, and Family Department (CYFD) after taking Alicia to the hospital; (2) investigate Alicia's preexisting medical conditions, which could have explained her injuries allegedly caused by abuse; (3) verify the timeline of the six days during which the abuse allegedly occurred; and (4) investigate the possible culpability of his then-wife. Second, he argued that there was insufficient evidence of the mental state required to classify the counts as serious violent offenses. Third, he argued that his conviction for multiple counts of child abuse violated the Double Jeopardy Clause. And fourth, he argued that the state appellate courts had based their decisions on statements of fact by the prosecutor that were unsupported by evidence. The district court denied relief.
Applicant seeks a COA from this court to appeal the district court's denial of his § 2254 application. Most of his arguments concern his counsel's performance before he entered his guilty plea. He asserts that Cooper was ineffective in (1) failing to assert Applicant's constitutional right to a speedy trial; (2) focusing on sentencing as the sole defense strategy; (3) failing to interview additional witnesses, including Applicant's business acquaintances and other children; (4) failing to retain an additional medical expert, or to supply the retained expert with additional information, in preparation of a mental-health defense; (5) providing inadequate advice during plea negotiations and inducing Applicant to plead guilty by falsely assuring him that he would be sentenced to no more than 12 years' imprisonment and may serve as few as six; (6) failing to file a pretrial motion to suppress coerced inculpatory statements; and (7) failing to investigate Alicia's medical conditions. He argues that these deficiencies prejudiced him because, had counsel provided competent representation, he would have gone to trial. As an additional ground for relief, he renews the argument that there was insufficient evidence to support the state court's finding that his offenses were serious violent offenses under the EMDA. Finally, he claims that the federal district court abused its discretion in failing to appoint counsel, order discovery, or conduct an evidentiary hearing in his § 2254 case. He does not challenge the district court's rulings on the other grounds in his § 2254 application.
A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires "a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [application] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a claim has been adjudicated on the merits in state court, a federal court can grant habeas relief only if the applicant establishes that the state-court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). As we have explained:
Under the "contrary to" clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (brackets and internal quotation marks omitted). Relief is provided under the "unreasonable application" clause "only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (brackets and internal quotation marks omitted). Thus, a federal court may not grant habeas relief simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. See id. Rather, that application must have been unreasonable. Moreover, "AEDPA's deferential treatment of state court decisions must be ...