Campbell v. Williams , 66 F. App'x 170 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    MAY 13 2003
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT                    PATRICK FISHER
    Clerk
    MARTIN EDWARD CAMPBELL,
    Petitioner-Appellant,
    v.                                                    No. 02-2236
    (D. New Mexico.)
    JOE WILLIAMS, Warden, Lea County            (D.Ct. No. CIV-01-927-LH/RLP)
    Correctional Facility; ATTORNEY
    GENERAL FOR THE STATE OF
    NEW MEXICO,
    Respondents-Appellees.
    ORDER AND JUDGMENT *
    Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.
    After examining the briefs and 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); 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    This order and judgment is not binding precedent except under the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.
    Mr. Martin Campbell applies pro se 1 for a Certificate of Appealability
    (“COA”) 2 of the district court’s denial of his petition for a writ of habeas corpus
    under 
    28 U.S.C. § 2254
     (2003). 3 We deny Mr. Campbell’s application for
    issuance of a COA.
    Mr. Campbell was found guilty by a jury in New Mexico state court of
    second-degree murder and aggravated battery with a deadly weapon, for the
    killing of Preston Gose. He was sentenced to sixteen years imprisonment for
    second-degree murder (with a firearm enhancement) and four years for aggravated
    battery with a deadly weapon (with a firearm enhancement), the sentences to run
    concurrently. In support of his application, Mr. Campbell asserts a plethora of
    grounds for relief in his habeas action: (1) trial court error for failing to instruct
    the jury on voluntary manslaughter and defense of property; (2) trial court error in
    declining to merge the aggravated battery and second-degree murder counts; (3)
    trial court error for refusing to credit him for time served under house arrest; (4)
    ineffective assistance of counsel; (5) prosecutorial misconduct; (6) jury
    tampering; and (7) evidence tampering.
    “[U]ntil a COA has been issued federal courts of appeals lack jurisdiction
    1
    We liberally construe a pro se petition. Cummings v. Evans, 
    161 F.3d 610
    ,
    613 (10th Cir. 1998), cert. denied, 
    526 U.S. 1052
     (1999).
    2
    See 
    28 U.S.C. § 2253
    (c)(1).
    3
    The district court denied Mr. Campbell a COA.
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    to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell,
    ____ U.S. ____, 
    123 S. Ct. 1029
    , 1039 (2003). A COA can issue only “if the
    applicant has made a substantial showing of the denial of a constitutional right.”
    
    28 U.S.C. § 2253
    (c)(2). “A petitioner satisfies this standard by demonstrating
    that jurists of reason could disagree with the district court’s resolution of his
    constitutional claims or that jurists could conclude the issues presented are
    adequate to deserve encouragement to proceed further.” Miller-El, 
    123 S. Ct. at 1034
    . “The COA determination under § 2253(c) requires an overview of the
    claims in the habeas petition and a general assessment of their merits.” Id. at
    1039. “This threshold inquiry does not require full consideration of the factual or
    legal bases adduced in support of the claims. In fact, the statute forbids it.” Id.
    While an applicant for a COA is not required to prove the merits of his or her
    case, he or she must demonstrate “something more than the absence of frivolity or
    the existence of mere good faith on his or her part.” Id. at 1040 (internal
    quotation marks and citation omitted).
    First, Mr. Campbell’s claim of inadequate jury instructions fails. “Habeas
    proceedings may not be used to set aside a state conviction on the basis of
    erroneous jury instructions unless the errors had the effect of rendering the trial
    so fundamentally unfair as to cause a denial of a fair trial in the constitutional
    sense . . . .” Brinlee v. Crisp, 
    608 F.2d 839
    , 854 (10th Cir. 1979), cert. denied,
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    444 U.S. 1047
     (1980). Evidence was presented at trial that Mr. Campbell beat his
    victim with a pistol in an apartment, ordered the victim off of the property, and
    then shot him in the head. Campbell v. Williams, No. 01-927 (D.N.M. June 10,
    2002) (Magistrate Judge’s Proposed Findings and Recommended Disposition,
    adopted by the district court August 13, 2002). The trial court determined a
    reasonable person in Mr. Campbell’s position would have “cooled off” upon
    seeing the victim follow his order to leave the property, and that defense of
    property did not require deadly force. These conclusions did not deprive Mr.
    Campbell of a constitutionally fair trial. See Tyler v. Nelson, 
    163 F.3d 1222
     (10th
    Cir. 1999).
    Second, Mr. Campbell argues the aggravated battery and the second-degree
    murder charges should have merged. This is a double jeopardy argument,
    alleging a violation of the Fifth Amendment. The New Mexico Court of Appeals
    and the United States District Court addressed the argument, holding that Mr.
    Campbell’s acts were not unitary, and thus double jeopardy did not bar the
    indictment and conviction of these two distinct crimes. Campbell v. Williams,
    No. 01-927 (D.N.M. June 10, 2002). Even if Mr. Campbell’s acts were all part of
    one transaction, the convictions are not barred because they do not fit the double
    jeopardy test of Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932).
    “[W]here the same act or transaction constitutes a violation of two distinct
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    statutory provisions, the test to be applied to determine whether there are two
    offenses or only one is whether each provision requires proof of an additional fact
    which the other does not.” 
    Id.
     Our review of New Mexico statutes defining
    aggravated battery and second-degree murder satisfies us that each offense
    contains an element not present in the other. Aggravated battery is defined as (1)
    “unlawful touching or application of force,” (2) “to the person of another,” (3)
    “with intent to injure.” 
    N.M. Stat. Ann. § 30-3-5
    (A) (2002). Second-degree
    murder is defined as (1) killing, (2) another human being, and (3) “in performing
    the acts which cause the death he knows that such acts create a strong probability
    of death or great bodily harm to that individual or another.” 
    Id.
     § 30-2-1(B).
    This third element of second-degree murder goes beyond the mere intent to injure
    required for aggravated battery, and as such is a distinct element. The fact that
    some evidence for these two crimes might overlap does not require double
    jeopardy to bar one of the convictions. “If each [offense] requires proof of a fact
    that the other does not, the Blockburger test is satisfied, notwithstanding a
    substantial overlap in the proof offered to establish the crimes.” Tucker v.
    Makowski, 
    883 F.2d 877
    , 879 (10th Cir. 1989) (quoting Iannelli v. United States,
    
    420 U.S. 770
    , 785 n.17 (1975) (emphasis in original). Mr. Campbell’s acts satisfy
    this test and his convictions for aggravated battery and second-degree murder are
    not barred by double jeopardy.
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    Third, Mr. Campbell asserts he should have received credit for pre-sentence
    time he remained at home wearing a monitoring device. This is a state law issue,
    and he has made no showing it amounts to denial of a constitutional right.
    Fourth, Mr. Campbell claims he received ineffective assistance of counsel
    because his attorney did not hire an expert to analyze and testify regarding blood
    splatter, ballistic tests, and crime scene reconstruction. To prevail on this claim,
    he must show (1) counsel’s performance was objectively deficient, and (2) the
    deficiency prejudiced the defense, depriving him of a fair trial. Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). Mr. Campbell has not demonstrated the
    outcome of the trial would have been different had an expert been hired. His
    speculations do not satisfy Strickland.
    Fifth, Mr. Campbell argues a missing jury questionnaire and seating chart
    afforded the prosecutor the ability to place jurors where he wanted —
    “conservatives in front and liberals in back.” He also complains the prosecutor
    should not have asked a defense expert witness how much she was being paid to
    testify. “[P]rosecutorial misconduct in a state court violates a defendant’s right to
    a fair trial only if the prosecutor’s actions ‘so infected the trial with unfairness as
    to make the resulting conviction a denial of due process.’” Nguyen v. Reynolds,
    
    131 F.3d 1340
    , 1358 (10th Cir. 1997) (quoting Donnelly v. DeChristoforo, 
    416 U.S. 637
    , 643 (1974)), cert. denied, 
    525 U.S. 852
     (1998). These complaints, even
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    if true, would not render the trial constitutionally unfair.
    Last, Mr. Campbell contends the trial court allowed evidence he claims was
    fabricated. “State court rulings on the admissibility of evidence may not be
    questioned in federal habeas proceedings unless they render the trial so
    fundamentally unfair as to constitute a denial of federal constitutional rights.”
    Brinlee, 
    608 F.2d at 850
    . His fabrication argument is pure speculation, and as
    such, does not establish a fundamentally unfair trial.
    With these principles in mind, we have carefully reviewed the record of
    these proceedings and the magistrate judge’s well-crafted order adopted by the
    district court. We adopt its reasoning, conclude that reasonable jurists would not
    debate its resolution of the constitutional claims presented, and deny the request
    for a COA.
    Entered by the Court:
    TERRENCE L. O’BRIEN
    United States Circuit Judge
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