Maxwell v. Bravo

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 22, 2000
• Docket: 00-2149
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS TENTH CIRCUIT Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 (303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk

December 13, 2000

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT

RE: 00-2149, Maxwell v. Bravo, et al. Filed on November 22, 2000

The order and judgment contains a typographical error on page two, in the first full paragraph, tenth line down from the top of the page. “Magistrate Judge Lorenzo Garza” is corrected to read “Magistrate Judge Lorenzo F. Garcia.” A copy of the corrected order and judgment is attached.

Sincerely,

Patrick Fisher, Clerk of Court

By: Keith Nelson Deputy Clerk

encl. F I L E D United States Court of Appeals Tenth Circuit

NOV 22 2000 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk

ANTHONY MAXWELL,

Petitioner-Appellant, v. No. 00-2149 ERASMO BRAVO, Associate (D.C. No. CIV-99-123-JC/LFG) Warden, Lea County Correctional (Dist. N.M.) Facility; and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

This is an appeal from a district court’s dismissal of a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 and denial of a certificate of

appealability. After reviewing Appellant’s brief and the magistrate judge’s

findings and recommended disposition, we conclude that Appellant has not made

* After examining appellant’s brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. a substantial showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c)(2); Fed. R. App. Proc. 22(b). Therefore, we agree with the district

court and decline to issue a certificate of appealability.

A New Mexico jury found Appellant Anthony Maxwell guilty of trafficking

and distribution of a controlled substance. Maxwell’s conviction was upheld on

appeal. New Mexico courts denied post-conviction relief, and he petitioned the

federal district court of New Mexico for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. (Appeal Record, Vol. I, Doc. 1.) 1 Magistrate Judge Lorenzo F.

Garcia recommended that Maxwell’s petition be denied with prejudice (Doc. 16),

and the district court adopted that recommendation. (Doc. 19.) Maxwell filed a

notice of appeal (Doc. 21), and the district court declined to issue a certificate of

appealability. (Doc. 22.)

Maxwell raises five issues on appeal. First, he alleges that he was denied a

fair trial because the jury foreperson was biased against him. He maintains that

the foreperson knew him since childhood and that he “had conflicts” 2 with her

brothers and other family members. Second, he alleges that the trial court erred

in not declaring a mistrial after a prosecution witness twice referred to Maxwell

as a “target,” once after the trial court had admonished the witness not to use that

1 Subsequent citations to the Appeal Record will be to “Doc. #.” 2 See Appellant’s Opening Brief at 3.

-2- word again. Third, at trial, Maxwell took the stand and revealed that he had been

convicted of a felony four years earlier. On habeas appeal, he asserts the trial

court erred in permitting the prosecutor, on cross-examination, to elicit from

Maxwell that the conviction had been for marijuana distribution. Fourth, he

argues that his Fifth Amendment rights were violated when, the day before trial,

the original criminal information under which he had been charged was amended,

changing the word “methamphetamine” to “amphetamine.” Fifth, he alleges

ineffective assistance of counsel for (i) failing to investigate an alibi, (ii) failing

to move for a mistrial due to juror bias, (iii) failing to object when, allegedly, one

or more jurors 3 were sleeping during trial, and (iv) failing to investigate and

impeach the witness for the prosecution who testified Maxwell was a “target.”

Issues two, three, four, and parts (i) and (iv) of issue five were raised to the

magistrate judge. Issue one was raised for the first time to the district court.

Parts (ii) and (iii) of issue five were first raised to this court.

We agree with the district court that the magistrate judge properly analyzed

all the issues presented to it, including the issues now on appeal to us.

Furthermore, the district court considered, and rejected, Appellant’s first

argument, finding “no constitutional violation in [Maxwell’s] attorney’s handling

3 See id. at 5.

-3- of voir dire and jury selection.” Doc. 19 at 2 (Order Adopting Magistrate Judge’s

Findings and Recommended Disposition).

As to the new claims of ineffective assistance of counsel, they amount to

new issues on appeal. See United States v. Reyes, No. 99-5133, 2000 WL 289618,

at *1 (10th Cir. March 20, 2000). Because Defendant raises these claims for the

first time in this appeal, we decline to consider them. See United States v.

Mendoza- Lopez, 7 F.3d 1483, 1485 n. 2 (10th Cir. 1993).

Therefore, for substantially the reasons stated in the district court’s order

and the magistrate judge’s findings and recommended disposition, we decline to

issue a certificate of appealability. See 28 U.S.C. § 2253(c). This appeal is

accordingly DISMISSED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

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