Ogden v. Bravo , 35 F. App'x 722 ( 2002 )


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  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 28 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    KEVIN K. OGDEN,
    Petitioner-Appellant,
    v.                                                          No. 01-2306
    ERASMO BRAVO, Warden, Guadalupe                   (D.C. No. CIV-01-658 JP/RLP)
    County Correctional Facility;                               (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,
    Respondents-Appellees.
    ORDER AND JUDGMENT*
    Before HENRY, BRISCOE and MURPHY, 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.
    Petitioner Kevin Ogden, a New Mexico state prisoner appearing pro se, seeks a
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    certificate of appealability (COA) to appeal the district court's dismissal of his 28 U.S.C.
    § 2254 habeas petition. Because he has failed to make a “substantial showing of the
    denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his
    request for a COA and dismiss the appeal.
    Ogden was convicted of first degree murder of a community service officer, and
    three counts of receipt, transportation, or possession of a firearm by a felon. Although the
    State sought the death penalty, Ogden was sentenced to life imprisonment on the murder
    count and additional time on each of the firearms counts. His convictions were affirmed
    in his direct appeal to the New Mexico Supreme Court (NMSC). Ogden, appearing pro
    se, subsequently filed a petition for state habeas relief, asserting forty-one claims of error,
    which was denied on March 9, 2001. It is disputed whether Ogden sought review of that
    denial by the NMSC. The State contends Ogden failed to file a petition for writ of
    certiorari with the NMSC. Ogden, however, alleges he mailed a petition for writ of
    certiorari to the NMSC on May 21, 2001.
    On June 5, 2001, Ogden filed his federal habeas petition, asserting the same forty-
    one claims of error asserted in his state habeas petition.1 The magistrate judge reviewed
    1
    Ogden’s federal habeas petition specifically enumerated the following issues: (1)
    the trial court erred by not conducting a speedy trial; (2) the court lacked jurisdiction
    because it failed to instruct the jury on the elements of the alleged crime; (3) the court
    erred in admitting prejudicial and highly inflammatory photographs; (4) the court erred in
    holding that the victim, a community service officer, was a peace officer within the
    meaning of New Mexico’s death penalty statutes; (5) the court erred in excusing potential
    jurors who were opposed to the death penalty; (6) the prosecutors acted improperly by
    2
    the petition and concluded that two of the forty-one issues had been addressed by the
    aligning themselves with the court and the victim; (7) the court erred by admitting
    evidence of Ogden's alleged acts and prior convictions; (8) the court erred in allowing the
    media into the courtroom prior to and during trial; (9) the prosecution made improper
    references to Ogden’s character; (10) Ogden’s conviction was the result of passion,
    prejudice, discrimination, and arbitrary and capricious factors; (11) the court erred by
    admitting into evidence polygraph results and testimony from one of the state’s witnesses;
    (12) the court erred by failing to give Ogden a preliminary trial; (13) the court erred in
    admitting evidence of Ogden’s prior conviction, his gun charges, and alleged incidents
    involving nonconvictions; (14) Ogden was exposed to double jeopardy as a result of
    extraneous matters, the consecutive sentences, and the multiple charges and trials; (15)
    the State of New Mexico passed an ex post facto law directly aimed at Ogden; (16) the
    court erred in omitting uniform jury instructions that included the possibility of a verdict
    of guilty but mentally ill; (17) the court erred in refusing to allow Ogden to pursue any
    defense other than insanity; (18) the court erred when it refused to allow Ogden to aid in
    his defense; (19) the court erred by failing to ensure there were equal numbers of men and
    women on the jury; (20) the court erred in refusing to instruct the jury on the correct
    definition of the term “peace officer”; (21) the court erred in refusing to allow the jury to
    decide whether the victim was a “peace officer”; (22) the court erred in instructing the
    jury that a life sentence was mandatory; (23) the court erred by not allowing Ogden any
    alternative defenses; (24) the court erred by forcing Ogden to be represented by a public
    defender who was not familiar with the case; (25) the court erred in instructing the jury on
    an aggravating circumstance that was not authorized under New Mexico law; (26) the
    court erred by not defining for the jury during sentencing proceedings the duties of a
    peace officer; (27) the court erred by failing to individually sequester the members of the
    jury pool during voir dire; (28) the court erred by failing to sequester psychologist
    William Mathews; (29) the life sentence imposed was disproportionate to the crime of
    conviction; (30) the jurors were unqualified; (31) the court erred in failing to sequester
    the jury during the trial; (32) the court erred by admitting certain psychological testimony;
    (33) the court erred when it imposed sentence enhancements in connection with Ogden’s
    firearms convictions; (34) the court erred in allowing a certain evaluation to be used by
    the testifying psychological experts; (35) the court erred in excluding black jurors; (36)
    the court failed to provide reasons for its rulings on particular pretrial motions; (37) the
    court erred by declaring Ogden incompetent to proceed pro se on appeal; (38) the court
    erred by sustaining the prosecution’s objection to a certain witness’ testimony about what
    the trial court said to her; (39) the court erred in certifying a pretrial interlocutory appeal;
    (40) the psychologists who testified at trial were not qualified to be witnesses; and (41)
    the court erred when, during voir dire, it informed potential jury members that Ogden
    would be facing a life sentence plus six years.
    3
    NMSC in the direct appeal. The magistrate noted, however, that those two issues
    (whether the trial court erred in admitting evidence of “prior bad acts” and evidence of
    polygraph test results) concerned only the admissibility of evidence under state law and
    did not implicate any of Ogden’s federal constitutional rights. As for the remaining
    issues, the magistrate concluded they were first raised in Ogden’s state habeas petition
    and were procedurally barred due to Ogden’s failure to file a timely petition for writ of
    certiorari with the NMSC. The magistrate recommended dismissing with prejudice all
    forty-one of Ogden’s habeas claims. The magistrate noted that Ogden’s petition
    referenced problems pertaining to his conditions of confinement, particularly the denial of
    mental health treatment and medication, and recommended dismissing those claims
    without prejudice. After allowing Ogden to file written objections, the district court
    adopted the magistrate judge’s recommendations and dismissed with prejudice Ogden’s
    habeas claims, and dismissed without prejudice his claims concerning conditions of
    confinement. The court denied Ogden a COA.
    After reviewing the record on appeal, we conclude that five of the issues now
    asserted in Ogden’s federal habeas petition were presented to the NMSC, either on direct
    appeal or in a pretrial interlocutory appeal.2 It is apparent, however, that none of these
    2
    In the interlocutory appeal, the NMSC held: (1) it was proper for the trial court
    to act upon Ogden’s motion and conduct a pretrial review of the alleged “murder of a
    peace officer” aggravating circumstance; and (2) community service officers were “peace
    officers” within the meaning of New Mexico’s capital sentencing statute (which included
    as a potential aggravating factor the murder of a peace officer). State v. Ogden, 
    880 P.2d 4
    issues entitle Ogden to federal habeas relief. As noted by the magistrate judge, two of
    these issues (Issues 7 and 11) pertain to the trial court’s evidentiary rulings (regarding
    admission of prior bad acts and polygraph test results) under New Mexico state law, but
    do not allege the violation of any of Ogden’s federal constitutional rights. Issues 4 and 25
    appear to pertain to the NMSC’s pretrial holding that community service officers are
    considered “peace officers” for purposes of New Mexico’s capital sentencing statute,
    N.M. Stat. Ann. § 31-20A-5 (which provides, in part, that one possible aggravating
    circumstance is that “the victim was a peace officer who was acting in the lawful
    discharge of an official duty when he was murdered”). See State v. Ogden, 
    880 P.2d 845
    ,
    855-56 (N.M. 1994). Because the holding appears to involve only an issue of state law,
    and because Ogden was sentenced to life imprisonment rather than death, we fail to see
    how Ogden would be entitled to federal habeas relief on these issues. Finally, Issue 5
    pertains to the jury selection process utilized by the trial court. In his direct appeal,
    Ogden argued that the trial court’s screening of jurors under Witherspoon v. Illinois, 
    391 U.S. 510
    (1968), resulted in a jury panel that was “conviction prone” during the guilt
    phase proceedings. The NMSC rejected the argument. Given the Supreme Court’s
    decision in Lockhart v. McCree, 
    476 U.S. 162
    (1986), we conclude the NMSC decision
    was entirely reasonable and provides no basis for granting federal habeas relief. In
    Lockhart, the Supreme Court rejected the same argument raised by Ogden and held that
    845 (N.M. 1994).
    5
    “the removal for cause of ‘Witherspoon-excludables’ serves the State’s entirely proper
    interest in obtaining a single jury that c[an] impartially decide all of the issues in [the]
    case.” 
    Id. at 180.
    As for the remaining thirty-six issues asserted by Ogden, we agree with the district
    court that they are procedurally barred. New Mexico state law provides a firm certiorari
    deadline in habeas cases: “Petitions for writs of certiorari shall be filed with the supreme
    court clerk within thirty (30) days of the district court’s denial of the petition.” N.M. R.
    App. P. 12-501(B). Although it is disputed whether Ogden filed a petition for writ of
    certiorari with the NMSC following the state district court’s denial of his habeas petition,
    it is uncontroverted that he did not meet the deadline. Ogden’s failure in this regard
    means that the thirty-six issues first raised in his state habeas petition were never
    addressed by the NMSC and are now procedurally defaulted for purposes of federal
    habeas review. See Thomas v. Gibson, 
    218 F.3d 1213
    , 1221 (10th Cir. 2000) (“[I]f a
    petitioner failed to exhaust state remedies and the court to which the petitioner would be
    required to present his claims in order to meet the exhaustion requirement would now find
    the claims procedurally barred, the claims are considered exhausted and procedurally
    defaulted for purposes of federal habeas relief.” (Internal quotation omitted.)). Ogden has
    not alleged, let alone established, cause and prejudice for this procedural default. See
    English v. Cody, 
    146 F.3d 1257
    , 1259 (10th Cir. 1998). Nor has Ogden established that
    application of the procedural bar will result in a fundamental miscarriage of justice (i.e.,
    6
    he has not made a colorable demonstration that he was actually innocent of the offenses
    of which he was convicted). See Herrera v. Collins, 
    506 U.S. 390
    , 403-04 (1993);
    
    English, 146 F.3d at 1259
    .
    Finally, we agree with the district court that to the extent Ogden seeks to assert
    constitutional challenges to his conditions of confinement, he must do so in an action
    filed pursuant to 42 U.S.C. § 1983. See Rael v. Williams, 
    223 F.3d 1153
    , 1154 (10th Cir.
    2000), cert. denied, 
    531 U.S. 1083
    (2001).
    Ogden’s request for a certificate of appealability is DENIED and the appeal is
    DISMISSED. The mandate shall issue forthwith.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    7