Cordova v. Janecka , 441 F. App'x 613 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 23, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DAVID CORDOVA,
Petitioner–Appellant,
v. No. 11-2171
(D.C. No. 09-CV-00821-MV-WPL)
JAMES JANECKA, Warden; GARY (D. New Mexico)
KING, Attorney General for the State
of New Mexico,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Petitioner seeks a certificate of appealability to appeal the district court’s
denial of his § 2254 habeas petition. A state jury convicted Petitioner of
residential burglary and larceny over $2500, and the trial judge sentenced him to
fourteen years in prison. Petitioner appealed his conviction, lost, and then filed a
pro se petition for writ of habeas corpus in state court raising claims of
prosecutorial misconduct and ineffective assistance of counsel. The state district
*
This order is not binding precedent except under the doctrines of law of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.
court dismissed Petitioner’s claims, and the New Mexico Supreme Court denied
his petition for writ of certiorari. Petitioner then filed this pro se 1 § 2254 habeas
petition, which raises three claims: (1) the admission of prior bad act evidence
and prosecutorial misconduct prejudiced his trial, (2) the evidence was
insufficient to find that the value of the property exceeded $2500, and (3) he
received ineffective assistance of counsel. The magistrate judge recommended
dismissal of Petitioner’s claims, and after conducting a de novo review, the
district court adopted the magistrate judge’s findings, dismissed Petitioner’s
claims, and denied a certificate of appealability.
To appeal the denial of his habeas petition, Petitioner must obtain a
certificate of appealability. See 28 U.S.C. § 2253(c)(1). In denying Petitioner’s
habeas petition, the magistrate judge concluded, and the district court agreed, that
the admission of prior felony convictions and any perceived prosecutorial
misconduct did not render the trial fundamentally unfair in light of the
overwhelming evidence supporting the burglary charge. The magistrate judge
also concluded that there was sufficient evidence for the jury to infer that the
market value of the items taken exceeded $2500. Further, the magistrate judge
concluded that Petitioner failed to offer sufficient evidence to support his
ineffective assistance of counsel claim. While we agree with the magistrate judge
1
We liberally construe Plaintiff’s pro se filings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
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that this is a close case, we also agree with the proposed findings and
recommended disposition, and have nothing to add.
After carefully reviewing Petitioner’s brief and the record on appeal, we
conclude that reasonable jurists would not debate whether the district court erred
in dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We
therefore DENY the application for a certificate of appealability and DISMISS
the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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