Lopez v. Tapia , 385 F. App'x 865 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 9, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
PAUL ARTHUR LOPEZ,
Petitioner–Appellant, No. 09-2198
v. (Case No. 1:09-CV-00218-JB-RLP)
GEORGE TAPIA, Warden; GARY K. (D.N.M.)
KING, Attorney General for the State
of New Mexico,
Respondents–Appellees.
ORDER *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner, a pro se state prisoner, seeks a certificate of appealability to
appeal the district court’s denial of his § 2254 habeas petition. He claims his
constitutional rights were violated during the pre-trial proceedings when “the
State, being bound by mandatory legislation, failed to conduct a preliminary
hearing within ten (10) days of his initial appearance.” (Application for
Certificate of Appealability at 6.) He further argues his constitutional rights were
violated when he was only permitted twenty minutes to review the juror
questionnaires prior to voir dire. He also argues, for the first time on appeal, that
*
This order is not binding precedent, except under the doctrines of law of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.
certain of the jurors who tried his case were actually or potentially biased against
him.
The state court concluded on appeal that Petitioner’s due process rights
were not violated when, following an order of enlargement of time, he was
indicted eleven days after his initial appearance. 1 The court concluded that New
Mexico’s Rules of Criminal Procedure did not require the filing of an indictment
within the ten-day period applicable for a preliminary examination and, moreover,
that the trial court was permitted to enlarge this time period. Furthermore, the
court concluded any error in the initiation of the proceedings did not warrant
dismissal of the indictment because Petitioner had shown no prejudice resulting
from the allegedly improper one-day delay. See State v. Tollardo, 654 P.2d 568,
570 (N.M. 1982) (“Dismissal is not the proper remedy for a delay in holding a
preliminary examination when prejudice to the defendant has not been shown.”)
“The right to a preliminary hearing in the State of New Mexico is one
guaranteed by the state constitution and only becomes a Federal Constitutional
guarantee by the equal protection clause of the Fourteenth Amendment because it
is a part of the due process of the state.” Silva v. Cox, 351 F.2d 61, 64 (10th Cir.
1965). Therefore, we must accept the state court’s interpretation of its laws
1
Pursuant to New Mexico law, the metropolitan court conducted a probable
cause determination at the time of Petitioner’s initial appearance and bound him
over for trial. See N.M.R.A. 7-203(A).
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unless this interpretation is “inconsistent with the fundamental principles of
liberty and justice.” Id. After reviewing the record and Petitioner’s filings on
appeal, we see no issue of fundamental unfairness in the state court’s
interpretation in this case, and we conclude that reasonable jurists would not
debate the district court’s dismissal of Petitioner’s claims relating to this issue.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
With respect to the juror questionnaires, Petitioner argued below that the
trial court denied his right to a fair trial by denying his request for a continuance
after allowing him only twenty minutes to review the forty questionnaires. When
the magistrate judge recommended dismissal of this claim because Petitioner had
pointed to no evidence of juror bias, Petitioner responded: “In considering this
issue the sole question IS NOT: whether or not the jury was bias[ed]. The sole
question is whether or not twenty minutes, alone, is enough time to read forty
Juror Question[n]aires.” (R. at 223.) Although he subsequently moved to expand
the record to include the juror questionnaires, he argued they were relevant
simply to demonstrate that these forty questionnaires could not be reviewed
within twenty minutes. Based on the arguments presented before the district
court and our review of the record on appeal, we conclude that reasonable jurists
would not debate the district court’s dismissal of this claim due to Petitioner’s
failure to establish he was denied the right to a fair and impartial jury through the
trial court’s denial of a continuance.
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In his petition for a certificate of appealability, Petitioner argues for the
first time that certain of the juror questionnaires reveal actual or potential bias,
demonstrating that his rights to a fair trial were prejudiced by the insufficient
time he was given to review the questionnaires. However, “absent extraordinary
circumstances, we will not consider arguments raised for the first time on appeal.
This is true whether an appellant is attempting to raise a ‘bald-faced new issue’ or
‘a new theory on appeal that falls under the same general category as an argument
presented at trial.’” McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th
Cir. 2002) (internal citation omitted) (quoting Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 722 (10th Cir. 1993)). We decline to grant a certificate of
appealability for Petitioner to raise a theory of bias that he affirmatively
disavowed before the district court.
We DENY Petitioner’s motion to expand the record on appeal. Petitioner’s
motion for an order permitting him to file handwritten pleadings is DENIED as
moot—pro se litigants are not prohibited from filing handwritten pleadings in this
court, and such an order is therefore unnecessary. In accordance with our
standard procedures, we have reviewed all of Petitioner’s handwritten filings in
this case. After reviewing these filings and the record on appeal, however, we
conclude that reasonable jurists would not debate the dismissal of Petitioner’s
habeas petition. Therefore, for substantially the same reasons given by the
magistrate judge and the district court, we DENY Petitioner’s request for a
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certificate of appealability and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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