Brown v. Attorney General of the State of New Mexico

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 14, 2024
• Docket: 23-2081
• Status: Unpublished

Opinion

Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ROY BROWN,

Petitioner - Appellant,

v. No. 23-2081 (D.C. No. 2:21-CV-01043-JB-JFR) ATTORNEY GENERAL OF THE STATE (D. N.M.) OF NEW MEXICO; MAJOR HORTON, Warden,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before EID, CARSON, and ROSSMAN, Circuit Judges. _________________________________

Roy Brown, a New Mexico state prisoner proceeding pro se, seeks a certificate

of appealability (COA) to challenge the district court’s denial of his petition for

habeas corpus relief under 28 U.S.C. § 2254. We deny a COA.

I.

Much of the background of Mr. Brown’s conviction is set out in State v.

Brown, No. A-1-CA-37337, 2020 WL 2104815 (N.M. Ct. App. Apr. 23, 2020)

(unpublished). The underlying events occurred the night of June 15–16, 2016, in

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 2

Roosevelt County, New Mexico. Law enforcement officers were called to a

residence where a victim reported being physically and sexually assaulted before

escaping to a neighbor’s to call for help. She gave a description of her attacker, and

officers found Mr. Brown outside the victim’s residence, barefoot and wearing a tank

top and boxer shorts. He matched the general description given by the victim and

had scratches on his body consistent with her report of scratching her attacker.

Officers arrested Mr. Brown on the scene. Following a criminal investigation,

he was indicted and then convicted by a jury of two counts of criminal sexual

penetration; aggravated battery; aggravated burglary; and resisting, evading or

obstructing an officer. The trial court sentenced him to 44 years’ imprisonment. On

direct appeal, the New Mexico Court of Appeals affirmed and the New Mexico

Supreme Court denied certiorari. His state habeas application was summarily

dismissed and the New Mexico Supreme Court declined to review that dismissal.

Mr. Brown filed a petition for habeas corpus relief pursuant to 28 U.S.C.

§ 2254 raising three issues: (1) “Sufficiency of DNA Evidence,” R. vol. I at 23–25;

(2) “Newly Discovered Evidence,” id. at 26–27; and (3) “Ineffective Assistance of

Counsel,” id. at 28–29. A United States Magistrate Judge determined no evidentiary

hearing was warranted under 28 U.S.C. § 2254(d) and entered proposed findings and

a recommended disposition (the PFRD). R. vol. II at 501–24. The PFRD

recommended the district court deny Mr. Brown’s petition and deny a COA. The

district court reviewed the PFRD de novo; overruled Mr. Brown’s objections to it;

2 Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 3

adopted the PFRD in its entirety; denied Mr. Brown’s petition; and denied a COA.

R. vol. II at 539–52. Mr. Brown then filed the application for a COA now before us.

II.

To appeal the dismissal of his § 2254 petition, Mr. Brown must obtain a COA.

See 28 U.S.C. § 2253(c)(1)(A). To do so, he “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA

determination under § 2253(c) requires an overview of the claims in the habeas

petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003).

Our analysis of a request for a COA accounts for the deferential treatment

afforded state court decisions by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). When a claim has

been adjudicated on the merits in a state court, a federal court may grant habeas relief

only if the petitioner establishes the state court’s 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).1

1 Because Mr. Brown proceeds pro se, his filings “are . . . construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets and internal quotation marks omitted). However, the court will not act as 3 Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 4

Mr. Brown’s COA application recites all three claims raised in his § 2254

petition but presents arguments only as to the issues addressed below. Other issues

that were included in his petition and resolved at the district court but not included in

the COA application are waived. See Tran v. Trs. of State Colls. in Colo., 355 F.3d

1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed

abandoned or waived.” (internal quotation marks omitted)).

A. First Claim—Sufficiency of DNA Evidence

Mr. Brown first contests the sufficiency of the evidence, particularly the DNA

evidence. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), evidence is

sufficient to sustain a conviction if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”

As detailed by the district court, extensive trial evidence supported the jury’s

conviction. The victim testified she awakened to find herself being smothered,

forcibly raped, and hit with a liquor bottle. Officers found Mr. Brown just outside

her residence. The victim identified Mr. Brown as her attacker.2 A nurse examiner

testified the victim’s injuries were consistent with forcible penetration. The

his advocate or “take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Id. 2 The PFRD described the evidence as showing “[t]he victim positively identified [Mr. Brown] as her attacker.” R. vol. II at 514. Mr. Brown objected to the PFRD’s reliance on the victim’s identification, and the district court overruled his objection. Other than vague attacks on the victim’s credibility, he does not argue any error related to her identification in his COA application, see Aplt. Br. at 4–5, and has therefore waived any further challenge related to it. See Tran, 355 F.3d at 1266. 4 Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 5

prosecution’s forensic scientist testified that the victim’s DNA was found on

Mr. Brown’s penis, hands, fingernails, and boxer shorts and that he was the major

contributor of male DNA found on the victim’s hand. The victim’s DNA was also

found on a Bacardi liquor bottle recovered from her bathroom, where she testified to

hiding the bottle used to attack her, and video evidence showed Mr. Brown

purchasing such a bottle earlier on the evening of the attack.

The district court found the evidence supporting Mr. Brown’s convictions

“compelling” and sufficient to support his convictions under the Jackson standard,

noting a habeas court presumes the jury resolved any conflicts in the evidence in

favor of the prosecution. See R. vol. II at 514 (citing Matthews v. Workman,

577 F.3d 1175, 1184 (10th Cir. 2009)); see also id. at 515 n.6.3

In his COA application, Mr. Brown criticizes various aspects of the evidence

and argues the DNA evidence was “conflicting” and “should have exonerated [him].”

Aplt. Br. at 4. His arguments include: that no male DNA was recovered from a swab

of the victim’s mouth, although she described being forced to perform oral sex on her

attacker; that vaginal swabs from the victim showed DNA of other males but not

Mr. Brown’s; that the liquor bottle did not have his fingerprints or DNA on it; that

the victim was allegedly dishonest about having had other sexual partners; and that

documents were not admitted to corroborate the forensic expert’s testimony that her

3 The district court concluded Mr. Brown had not exhausted a sufficiency-of- the-evidence claim on direct appeal or in state habeas proceedings but addressed the claim without requiring further exhaustion because it found Mr. Brown had not raised a colorable constitutional claim on this basis. We agree. 5 Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 6

test results were confirmed by other analysts. His arguments, at most, point to

alleged gaps or conflicts in the evidence or competing inferences the jury might have

drawn. These arguments do not show that the inculpatory evidence on which the jury

relied was insufficient. See Matthews, 577 F.3d at 1184.

We do not find the district court’s conclusion that the evidence—including the

DNA evidence—was sufficient to support Mr. Brown’s convictions under the

Jackson standard to be either reasonably debatable or wrong.

B. Second Claim—Newly Discovered Evidence

The second claim in Mr. Brown’s § 2254 petition alleged newly discovered

evidence, raising criminal proceedings against an investigating officer who testified

at his trial and alleging the same officer was not certified for the taser device he used

while arresting Mr. Brown. Mr. Brown’s COA application vaguely references “proof

of corruption from one of the prosecution[’]s key witness[es],” but makes no

argument as to how the district court erred in rejecting this claim. See Aplt. Br. at 4.

Absent argument of error, any claim for relief on this basis is waived. See Tran, 355

F.3d at 1266; Eizember v. Trammell, 803 F.3d 1129, 1145 (10th Cir. 2015) (“[It is]

settled law that insufficient briefing . . . will serve to waive an issue in this court even

if it was fairly presented and preserved in the district court.”).

C. Third Claim—Ineffective Assistance of Counsel

In his habeas petition, Mr. Brown argued five grounds of alleged ineffective

assistance of counsel, but his COA application includes only two. Neither warrants

relief, and the other grounds are waived. See Tran, 355 F.3d at 1266.

6 Appellate Case: 23-2081 Document: 010111015763 Date Filed: 03/14/2024 Page: 7

1. Discovery Materials

Mr. Brown argued in his § 2254 petition that his counsel denied him access to

discovery materials, and in his COA application he maintains he lacks “sufficient

discovery material” and “is still . . . collecting further material which was not

presented at trial.” Aplt. Br. at 5. The district court rejected this claim, noting

Mr. Brown had not identified how any allegedly missing materials affected his

constitutional rights. Similarly lacking, the conclusory argument in his COA

application does not indicate what materials he claims are missing or how they might

affect his constitutional rights. The district court’s denial of relief on this claim is

not reasonably debatable or wrong.

Mr. Brown further argues in his COA application that “tests performed on the

[victim]” after the attack contradict trial testimony indicating her injuries were

consistent with forcible penetration. See Aplt. Br. at 5. He asserts the prosecution

had materials related to such tests that he was not allowed to review, and he argues

the “tests” show the trial testimony was unreliable. However, Mr. Brown made no

argument related to such “tests” at the district court. Any claim on this basis is

therefore waived. See Robert v. Austin, 72 F.4th 1160, 1165 (10th Cir. 2023)

(“Absent extraordinary circumstances, arguments raised for the first time on appeal

are waived. This is true whether the newly raised argument is a bald-faced new issue

or a new theory on appeal that falls under the same general category as an argument

presented [at the district court].” (citation and internal quotation marks omitted)).

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2. Alleged Miranda violation

In his COA application, Mr. Brown argues his trial counsel was ineffective in

failing to challenge an “illegal interrogation” in which he was “never Mirandized.”

Aplt. Br. at 5. The PFRD rejected this argument because an audio recording of

Mr. Brown’s interview with law enforcement clearly includes an advisement of his

rights. Mr. Brown did not object to that finding in the district court. Under this

court’s firm waiver rule he has therefore waived any appellate review of this claim.

See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[A]

party’s objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue . . . for appellate review.”).4

III.

For the foregoing reasons, we deny a certificate of appealability and dismiss

this matter. Mr. Brown’s motion to proceed without prepayment of costs or fees is

granted.

Entered for the Court

Joel M. Carson III Circuit Judge

4 No exception to the firm waiver rule applies. We make exceptions if a pro se party “has not been informed of the time period for objecting and the consequences of failing to object.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). Here, the PFRD advised Mr. Brown he must file objections within fourteen days to preserve appellate review. We may also make an exception in the “interests of justice.” Id. That analysis “is similar to reviewing for plain error.” Id. at 1120. As the district court correctly found, the interview began with an advisement of Mr. Brown’s rights. There is no plain error. 8