Mayfield v. Morris ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 16, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
EARL R. MAYFIELD,
Petitioner - Appellant,
v. No. 20-2061
(D.C. No. 1:17-CV-00891-MV-SMV)
GREG MORRIS; TOM RUIZ; STATE OF (D. N.M.)
NEW MEXICO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before MORITZ, BALDOCK, and KELLY, Circuit Judges.
_________________________________
Earl R. Mayfield is a New Mexico prisoner represented by counsel. He seeks a
certificate of appealability (COA) to appeal the judgment denying his 28 U.S.C. § 2254habeas petition. We deny his request for a COA and dismiss this matter.
I. Background
A. State-Court Proceedings
These habeas proceedings involve Mayfield’s prosecution in New Mexico
stemming from allegations that he sold crack cocaine to an undercover officer working
with a confidential informant.

This order is not binding precedent except under the doctrines of law of the case,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.
Early in the case, Mayfield gave notice that he intended to present evidence
supporting an entrapment defense. And he identified the confidential informant as a
defense witness. Nearly a year later, Mayfield’s trial counsel moved to withdraw.
Counsel had interviewed the informant, who admitted to providing Mayfield with the
drugs he was accused of selling. According to counsel, Mayfield demanded that counsel
serve as a defense witness because he alone could testify about his interview with the
informant. Counsel also claimed that his relationship with Mayfield had “broken down
beyond the point of repair.” Aplt. App. vol. 3 at 85. The trial court denied the motion to
withdraw. More than two and a half years later, still before trial, counsel notified the
court and the prosecution that, “after further investigation,” Mayfield no longer intended
to introduce evidence of entrapment and no longer intended to call the informant as a
witness. Id. at 141.
The case went to trial. The testimony of Albuquerque police officers “tend[ed] to
establish that Mr. Mayfield transferred crack cocaine to an undercover officer.” Id. vol. 2
at 198. Mayfield argued “that he had been entrapped by a different undercover officer
who acted in concert with a confidential informant first to provide him with the crack
cocaine and then to set up and direct the transaction.” Id.1 The jury convicted Mayfield
of trafficking a controlled substance and two related charges, and he received a
nineteen-year prison sentence.
1
The record does not include transcripts from the trial-court proceedings. We
gather this general information about the trial from counsel’s docketing statement to the
New Mexico Court of Appeals.
2
Mayfield tried and failed to obtain relief through a direct appeal and a state habeas
petition.
B. Federal Proceedings
Mayfield filed a § 2254 habeas petition in federal district court. He eventually
obtained counsel, who filed what the court treated as his “Fourth Amended Petition,
entirely supplanting the earlier, pro se petitions and amendments.” Id. vol. 6 at 204 n.1.2
The petition raised three claims. First, Mayfield argued that his conviction and sentence
violated due process because law-enforcement officers and agents “wholly created” the
crime he committed, “supplying the drugs, acting as seller and buyer.” Id. vol. 2 at 19.
Second, he alleged violations of his rights to conflict-free counsel, to effective assistance
of counsel, and to represent himself. Third, he argued that the state violated his right to
due process by destroying exculpatory evidence.
The magistrate judge entered proposed findings and recommended that the district
court deny Mayfield’s petition. The district court adopted the recommendation and
denied Mayfield’s petition.3
2
Going forward, we will refer to Mayfield’s Fourth Amended Petition simply as
his “petition.”
3
Mayfield did not timely object to the magistrate judge’s recommendation. Under
our firm-waiver rule, such inaction typically “waives appellate review of both factual and
legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Mayfield argues that the rule does not apply here. We need not decide (1) whether the
firm-waiver rule applies in this case or (2) whether that rule provides a standalone basis
to deny a COA application. As we will explain, Mayfield has not satisfied the statutory
COA standard. For that reason, we may not grant his COA application even if, as we will
assume, the firm-waiver rule does not apply.
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II. Discussion
Mayfield needs a COA to appeal the district court’s judgment. 28 U.S.C.
§ 2253(c)(1)(A). We may issue a COA only if he “has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). This standard requires him to “show 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.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (brackets and internal quotation marks omitted).
This standard becomes more difficult to satisfy if a state court previously
adjudicated the merits of a § 2254 claim. In that case, we incorporate into our COA
analysis the deferential treatment of state-court decisions required under the
Antiterrorism and Effective Death Penalty Act of 1996. Davis v. McCollum, 798 F.3d
1317, 1319 (10th Cir. 2015). Mayfield disputes the district court’s conclusion that
New Mexico courts adjudicated his claims on the merits. We need not resolve this
dispute, however, because Mayfield has not shown that he is entitled to a COA even if, as
we will assume, no state court adjudicated his claims on the merits.
A. Claim Based on Law Enforcement’s Conduct
Mayfield’s petition argued that his conviction and sentence violated his Fourteenth
Amendment due-process rights because law enforcement created the crime he committed:
“A confidential informant, working in concert with law enforcement officers, at their
direction and under their control, supplied Mr. Mayfield with a quantity of crack cocaine,
for the sole purpose of selling it to a law enforcement officer working undercover.” Aplt.
4
App. vol. 2 at 21–22. This scheme violated due process, he argued, “under the
outrageous government conduct doctrine, or objective entrapment.” Id. at 22.
The outrageous-government-conduct doctrine is predicated on due process.
United States v. Mosley, 965 F.2d 906, 908–09 (10th Cir. 1992). Outrageous government
conduct involves “either (1) excessive government involvement in the creation of the
crime, or (2) significant governmental coercion to induce the crime.” United States v.
Dyke, 718 F.3d 1282, 1288 (10th Cir. 2013). Although our circuit has “recognized the
doctrine’s potential viability,” we “have yet to find a single case where the defense
applies.” Id. at 1287.
Mayfield’s petition focused on his allegation that law enforcement agents acted
“as seller and buyer.” Aplt. App. vol. 2 at 19. Yet we have “held the government can act
as both supplier and buyer in sales of illegal goods.” United States v. Harris, 997 F.2d
812, 817 (10th Cir. 1993). And, as the district court recognized, nothing in Mayfield’s
petition suggests that the government coerced him to commit a crime. In his COA
application, he highlights that he was addicted to crack. But we have held that the
government did not violate due process in a case where the defendant “would most
accurately be categorized as an addict whose sole motivation for arranging the
transactions for [a detective] was to obtain some cocaine for himself.” Id. at 815, 818.
At bottom, Mayfield has not made a substantial showing that outrageous government
conduct violated his due-process rights.
Objective entrapment is a defense under New Mexico state law. See State v.
Vallejos, 945 P.2d 957, 958 & n.2 (N.M. 1997) (holding “that entrapment, whether
5
subjective or objective, involves matters of due process” in a decision “based entirely on
state constitutional grounds”). Mayfield’s petition nearly conceded as much, arguing that
the trial court should have dismissed his case “under prevailing New Mexico law.” Aplt.
App. vol. 2 at 26. Objective entrapment, then, cannot help Mayfield at this point,
because “federal habeas corpus relief does not lie for errors of state law,” Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks omitted).
Reasonable jurists could not debate whether the district court correctly denied
Mayfield’s claim alleging improper government conduct.
B. Claims Related to Mayfield’s Representation
Mayfield’s petition alleged violations of his rights under the Sixth and Fourteenth
Amendments to conflict-free counsel, to effective assistance of counsel, and to represent
himself.
1. Right to Conflict-Free Counsel
“The Sixth Amendment’s guarantee of the right to counsel includes the right to
representation that is free from conflicts of interest.” United States v. Williamson,
859 F.3d 843, 851 (10th Cir. 2017) (internal quotation marks omitted).
Mayfield’s petition alleged a conflict flowing from his desire to call trial counsel
as a witness. The petition claimed that counsel attended “a critical pre-trial interview
with a law enforcement officer involved in the sham drug transaction that gave rise to this
prosecution.” Aplt. App. vol. 2 at 27–28. He further claimed that the government
“destroyed the only existing audio recording” of the interview, id. at 27, and that the
officer died before trial. Mayfield’s petition concluded that trial counsel “could have
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testified as to the information revealed in that interview,” id. at 28, so the trial court
should have allowed counsel to withdraw.
This argument does not warrant a COA. Mayfield’s petition did not explain why
trial counsel was the only witness who could have testified about the interview with the
officer. Besides, trial counsel’s motion to withdraw did not mention an interview with an
undercover officer; it cited a different interview entirely—trial counsel’s interview with
the confidential informant.
2. Right to Effective Assistance of Counsel
A “complete breakdown in communication between and attorney and client” can
cause a Sixth Amendment violation. United States v. Holloway, 939 F.3d 1088, 1097
(10th Cir. 2019) (internal quotation marks omitted). Although Mayfield’s petition
alleged that his relationship with trial counsel “broke down irretrievably” before trial,
Aplt. App. vol. 2 at 27, it failed to set out specific factual support for the claim. The
petition instead offered unsupported conclusions that Mayfield and his trial counsel were
“unable to work effectively as a team,” id. at 30, and that if the trial court had conducted
a hearing, “it would have been presented with evidence demonstrating that the
attorney-client relationship between [trial counsel] and Mr. Mayfield had irretrievably
broken down,” id. at 28. What is more, Mayfield’s petition failed to identify the factors
bearing on whether an attorney-client relationship has completely broken down and failed
to allege facts that could show such a breakdown under those factors. See Holloway,
939 F.3d at 1098 (identifying four factors informing “whether a complete breakdown in
communication rendered a defendant’s representation constitutionally ineffective”).
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His COA application suffers from these same shortcomings, preventing him from making
a substantial showing that he received ineffective assistance of counsel.
3. Mayfield’s Right to Represent Himself
“A defendant has the Sixth Amendment right to waive his right to counsel and
represent himself in a criminal case.” Williamson, 859 F.3d at 861. To invoke this right,
a “defendant must clearly and unequivocally assert his intention to represent himself,”
must timely assert this intention, and must knowingly and intelligently give up the
benefits of having counsel. United States v. Mackovich, 209 F.3d 1227, 1236 (10th Cir.
2000) (internal quotation marks omitted). Although a comprehensive hearing is
“probably the best way” to ensure a valid waiver of the right to counsel, such a hearing is
not always necessary. United States v. Vann, 776 F.3d 746, 763 (10th Cir. 2015).
Mayfield’s petition alleged that the trial court “persisted in denying” his attempts
to represent himself and did so without conducting “a hearing at which evidence of [his]
ability to represent himself could have been tested.” Aplt. App. vol. 2 at 28. Yet he
failed to explain the circumstances surrounding his requests and failed to allege that his
requests were clear and unequivocal. He similarly failed to explain the circumstances
surrounding the trial court’s rulings, other than to say that the court did not hold a
hearing. But asserting that the court did not hold a hearing stops well short of showing a
constitutional violation. Mayfield did not attempt to explain, for instance, why the court
lacked sufficient information to rule on his requests without a hearing. Nor did he
identify specific information that he would have presented at a hearing. Given this lack
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of supporting allegations, no reasonable jurist could debate the district court’s decision to
deny Mayfield’s claim that the trial court violated his right to represent himself.
C. Destruction of Evidence
A due-process violation occurs when the government destroys evidence holding
“exculpatory value that was apparent before the evidence was destroyed” and that was
“of such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984).
Mayfield alleged that the state violated his Fourteenth Amendment due-process
rights by destroying the only audio recording of an interview with the undercover officer
who died before trial. Although the petition labelled the recording “exculpatory,” Aplt.
App. vol. 2 at 21, it did not identify who destroyed the recording, did not say how or
when it was destroyed, and did not explain why Mayfield could not have obtained
comparable evidence by other reasonable means. The denial of this claim is not
debatable.
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III. Conclusion
We deny Mayfield’s application for a COA and dismiss this matter.4
Entered for the Court
Nancy L. Moritz
Circuit Judge
4
After the district court entered judgment, it denied Mayfield’s motions for more
time to object to the magistrate judge’s recommendation and for relief under Federal
Rules of Civil Procedure 59(e) and 60(b). Mayfield also seeks to appeal the
postjudgment orders. To obtain a COA for these procedural rulings, however, he still
must show “‘that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right.’” Spitznas v. Boone, 464 F.3d 1213,
1225 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). He has
not made this showing. Mayfield also asserts that the district court should have held an
evidentiary hearing on his claims. But a hearing was not necessary because, as we have
explained, Mayfield’s petition did not allege facts that, if true, would entitle him to
habeas relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
10