Stallings v. Santistevan

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 20, 2022
• Docket: 21-2115
• Status: Unpublished

Opinion

Appellate Case: 21-2115 Document: 010110713757 Date Filed: 07/20/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 20, 2022 _________________________________ Christopher M. Wolpert Clerk of Court RICK G. STALLINGS,

Petitioner - Appellant, No. 21-2115 v. (D.C. No. 2:20-CV-00014-JB-KBM) (D. N.M.) DWAYNE SANTISTEVAN, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________

Pro se petitioner Rick G. Stallings, a New Mexico state prisoner, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254. We deny Petitioner’s request for a

COA and dismiss his appeal. We also deny Petitioner’s motion to proceed in forma

pauperis.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of 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. This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-2115 Document: 010110713757 Date Filed: 07/20/2022 Page: 2

I.

A New Mexico state court sentenced Petitioner to thirteen years in prison for

possession of a deadly weapon—a sharpened eyeglasses arm—which jail officials

discovered in his cell while the state held him in pretrial custody for charges of capital

murder and eight other theft and firearm counts. A jury also convicted him in the

homicide case, and the court sentenced him to life imprisonment plus sixteen-and-a-half

years. The state court ordered his possession-of-a-deadly-weapon and homicide

sentences to run consecutively.

Petitioner appealed his deadly-weapon conviction to the New Mexico Court of

Appeals. It affirmed the conviction, and the New Mexico Supreme Court denied

certiorari. Petitioner filed a petition for writ of habeas corpus in the state district court.

The district court denied the petition, and the New Mexico Supreme Court denied

certiorari. Petitioner then filed a federal habeas petition, which the federal district court

denied on June 30, 2021. This appeal followed.

II.

Our jurisdiction arises under 28 U.S.C. § 1291 and § 2253(c). Preliminarily, we

note that Petitioner untimely filed a notice of appeal on October 4, 2021. See Fed. R.

App. P. 4(1). But we conclude Petitioner’s late filing does not impede our jurisdiction

because he substantially complied with the appellate rules by sending a letter dated July

14, 2021, to the district court. “[A] notice of appeal must specifically indicate the

litigant’s intent to seek appellate review,” and “a document filed within the time specified

by Rule 4 [that] gives the notice required by Rule 3 . . . is effective as a notice of appeal.”

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Smith v. Barry, 502 U.S. 244, 248-49 (1992) (citing Foman v. Davis, 371 U.S. 178, 181

(1962)). Federal Rule of Appellate Procedure 3(c)(1) requires a notice of appeal to

“specify the party or parties taking the appeal,” “designate the judgment . . . from which

the appeal is taken,” and “name the court to which the appeal is taken.” Petitioner’s

letter, filed just two weeks after the district court dismissed his habeas petition, states he

“received the Final Judgment on the above titled case . . . and would like to appeal to the

10th Circuit Court of Appeals in Denver, Colorado.” Petitioner also stated he was

“unsure of the process” and asked the district court to “provide [him] with an appeal

packet.” Id. Petitioner indicated his intent to appeal and met the requirements of Rule 3.

We therefore consider his letter a timely notice of appeal.

We next consider whether Petitioner is entitled to a COA. A COA is a

jurisdictional prerequisite to our review of a habeas application. 28 U.S.C.

§ 2253(c)(1)(A). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

we will grant a COA only if Petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make the showing, Petitioner must

prove that “reasonable jurists could debate whether (or, for that matter, agree that) the

petition 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) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 & n.4 (1983)). We may grant habeas relief from a state-court decision only if

that 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

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“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Davis v. McCollum, 798 F.3d 1317, 1319 (10th

Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1)–(2)).

III.

On appeal, Petitioner asserts eight claims: (1) his punishment by the county jail,

followed by his conviction, violated double jeopardy, (2) ineffective assistance of

counsel, (3) denial of the constitutional right to self-representation, (4) unconstitutional

ejectment from trial, and denial of (5) his request to preserve video evidence, (6) the

testimony of his preferred witnesses, (7) his motions to change venue, and (8) his right to

a speedy trial. We address each in turn to determine whether Petitioner has shown his

entitlement to a COA.

Petitioner first argues that his state-court conviction for “the same charge the jail

convicted him of” violates double jeopardy because the jail had already disciplined him

for possessing the eyeglass piece by revoking his canteen, telephone, and television

privileges and placing him in segregated lock-up for 30 days. Appellant Br. at 3. But a

criminal prosecution that follows an imposition of disciplinary sanctions for the same

conduct does not implicate double jeopardy. “Prison disciplinary proceedings are not

part of a criminal prosecution,” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing

Morrissey v. Brewer, 408 U.S. 471, 488 (1972)), and “[i]t is well established in this

Circuit that administrative punishment imposed by prison officials does not render a

subsequent judicial proceeding, criminal in nature, violative of the double jeopardy

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clause.” United States v. Rising, 867 F.2d 1255, 1259 (10th Cir. 1989) (citations

omitted).

Petitioner also argues the state trial judge “never ruled on” his two pro se motions

for a change of venue and that a venue change was necessary because of the “high

profile” of his murder case, racism in the “4-Corners Area,” and because the trial judge

“knew the victim in [the] murder case.” Appellant Br. at 6. Petitioner’s arguments fail

for various reasons. First, the arguments are factually inaccurate and contradicted by the

record. The trial judge denied one of the motions, disclaiming any conflict of interest,

and Petitioner withdrew the other. Second, Petitioner’s arguments are based on errors of

state law. Because he moved for a venue change under state law, his venue claims are

not entitled to federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(citations omitted) (stating “federal habeas corpus relief does not lie for errors of state

law”). Finally, to receive federal habeas relief, Petitioner must show the alleged errors

caused him prejudice. Petitioner does not explain if or how the trial venue resulted in

prejudice against him or argue that the trial judge’s decision was “contrary to, or involved

an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

The rest of Petitioner’s claims appear to stem from his right-to-self-representation

claim. Petitioner asserts that if he had been allowed to proceed pro se, he would have

pursued a different trial strategy, including additional witness testimony and video

evidence. He also argues he would not have asked to be excused from trial and his trial

would not have been “constantly postponed” by his attempts to dismiss his attorney. A

criminal defendant has the right to represent himself under the Sixth Amendment, “[b]ut

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this right lies in tension with the . . . right to counsel.” United States v. Simpson, 845

F.3d 1039, 1046 (10th Cir. 2017) (citing Faretta v. California, 422 U.S. 806, 819–20, 832

(1975)). To proceed pro se, Petitioner had to “clearly and unequivocally inform the

district court of his intention to represent himself”; his request had to be “timely and not

for the purpose of delay”; the court had to conduct a “comprehensive formal inquiry” into

whether he was “knowingly and intelligently” waiving the right to counsel; and he had to

be “able and willing to abide by rules of procedure and courtroom protocol.” Id. (quoting

United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006)). Throughout his case,

Petitioner said he did not want to proceed pro se and did not feel comfortable doing so,

but preferred that to representation by his appointed counsel. But he repeatedly changed

his mind about his desire to represent himself, including “just before trial,” and became

unresponsive when the trial judge tried to confirm an informed decision. We, like the

district court, find no fault with the trial judge’s extensive attempts to confirm whether

Petitioner indeed wanted to proceed pro se or was competent to do so. Given the

continued ambiguity of Petitioner’s position, we cannot say the trial judge violated the

constitution by denying his request to represent himself.

Petitioner’s ineffective assistance claims fail under the two-part test established in

Strickland v. Washington: he has not shown that counsel’s performance was deficient

because it fell below an objective standard of reasonableness, nor has he shown that

counsel’s deficient performance prejudiced his defense. 466 U.S. 668, 687–88 (1984).

Petitioner argues that counsel did not pursue his preferred, duress strategy at trial and did

not present witnesses and video evidence that he believes would have corroborated his

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version of events. But our scrutiny of counsel’s performance “must be highly

deferential,” and counsel must have “wide latitude . . . in making tactical decisions.”

Strickland, 466 U.S. at 689 (citation omitted). “Trial management is the lawyer’s

province,” and decisions about “what arguments to pursue,” McCoy v. Louisiana, 138

S.Ct. 1500, 1508 (quoting Gonzales v. United States, 533 U.S. 242, 248 (2008)), or

“which witnesses to call [are] quintessentially a matter of strategy for the trial attorney.”

United States v. Barrett, 797 F.3d 1207, 1214 (10th Cir. 2015) (quoting Boyle v.

McKune, 544 F.3d 1132, 1139 (10th Cir. 2008)). We agree with the district court that

Petitioner’s duress theory was unlikely to succeed and counsel’s decision to pursue a

different strategy was objectively reasonable.

As for Petitioner’s claims that he was denied his right to a speedy trial and

unconstitutionally excluded from trial, Petitioner caused the trial delays with his

continued attempts to fire his court-appointed counsel and decision to excuse himself

from trial. To determine whether pretrial delay violated Petitioner’s constitutional rights,

we balance length of delay, reason for delay, defendant’s assertion of his right, and

prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 533 (1972). Twenty-

two months passed between Petitioner’s arraignment and his trial. But we agree with the

district court that Petitioner’s responsibility for the delays coupled with his “infrequent

and less-than-vigorous” assertions of his speedy-trial right outweigh the length of the

delay and minimize any possible prejudice. Delays attributable to a defendant may

effectively waive the speedy-trial right, and Petitioner’s repeated clashes with his

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counsel, up to and even on the eve of trial, disrupted proceedings and weigh heavily

against him. See Vermont v. Brillon, 556 U.S. 81, 90, 93 (2009).

Petitioner fails to make “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), and the district court did not err in in denying his § 2254

petition. We deny his request for a COA and dismiss his appeal. Plaintiff has also failed

to show “the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal,” and we therefore deny his motion for leave to

proceed in forma pauperis. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.

1991) (citations omitted).

Entered for the Court

Joel M. Carson III Circuit Judge