Lopez v. Udall

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 17, 1999
• Docket: 98-2234
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 17 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

ALBERTO LOPEZ, JR.,

Petitioner-Appellant,

v. No. 98-2234 (D.C. No. CIV-92-337-SC) THOMAS UDALL, New Mexico (D. N.M.) Attorney General,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Cir. R. 36.3. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner Alberto Lopez, Jr. appeals from the district court’s dismissal

of his second habeas petition, filed under 28 U.S.C. § 2254 in 1992, which

challenges his state conviction for aggravated assault on a peace officer.

Our jurisdiction arises under 28 U.S.C.§ 1291, and we affirm.

When reviewing the dismissal of a habeas petition on the ground that the

petition constitutes an abuse of the writ, we review the district court’s factual

findings for clear error and its legal conclusions de novo . See Green v. Reynolds ,

57 F.3d 956, 957 (10th Cir. 1995). Petitioner fully discharged his sentence,

including his probationary term, in 1994. Respondent concedes, however that the

case is not moot. See Carafas v. LaVallee , 391 U.S. 234, 237 (1968) (holding

that a petitioner released from custody may continue to seek the writ if collateral

consequences--lingering disabilities or burdens resulting from the conviction--are

sufficient to give the petitioner “a substantial stake in the judgment of conviction

which survives the satisfaction of the sentences imposed on him”) (quotation

omitted).

Because this was a second habeas petition, petitioner bore the burden of

either showing “cause for the failure to raise the claim in an earlier habeas

petition, and prejudice therefrom,” Andrews v. Deland , 943 F.2d 1162, 1171

-2- (10th Cir. 1991), or presenting evidence of actual innocence supported by “new

reliable evidence . . . that was not presented at trial,” Schlup v. Delo , 513 U.S.

298, 324 (1995). This evidence had to be sufficient to establish “that it is more

likely than not that no reasonable juror would have convicted him in light of the

new evidence.” Id. at 327. After fully examining the state court record, the

district court found that petitioner had not met either burden and that his petition

was therefore barred for abuse of the writ.

On appeal, petitioner argues that the district court “failed to weigh the

probative force” of statements made in an incident report that petitioner claims

prove that he was unarmed during his confrontation with the officer he was

convicted of assaulting. Appellant’s Br. at 17. We disagree. The report that

petitioner claims is inconsistent with the officer’s trial testimony states that, while

petitioner was threatening that he and his men would shoot the officer unless he

left the area, petitioner was reaching for his shotgun. See R. Doc. 10, ex. D, at 1.

The incident interview states that at the time of the threat, one of petitioner’s men

had a rifle in his hands, and by the time the officer backed approximately fifty

feet down the street, petitioner had picked up his shotgun and had moved to the

middle of the street. See id. at 6-7. Petitioner’s theory of innocence is based on

timing: i.e., because the incident report states that he did not have the shotgun in

his hands at the exact time he made the threat to shoot, it proves he is actually

-3- innocent of aggravated assault. Clearly, the confrontation between petitioner and

the officer did not end immediately when petitioner’s threat was uttered; the

record reflects that petitioner refused to lay down his gun until the state police

arrived. See id. Petitioner admits that he was armed with the shotgun during the

confrontation; and petitioner was certainly capable of shooting the officer with

the shotgun from a distance of fifty feet. In the same incident report, the officer

reported being in immediate fear of a “shoot out.” See id. at 9. The district court

did not fail to properly weigh the “probative force,” if any, of the report, and

correctly determined that petitioner failed to establish either actual innocence or

any ineffective assistance of counsel in not focusing on this report or on alleged

inconsistency regarding timing between the report and the officer’s testimony

at trial.

The judgment of the United States District Court for the District of

New Mexico is AFFIRMED .

Entered for the Court

Wesley E. Brown Senior District Judge

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