Gallegos v. Bravo , 437 F. App'x 624 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
August 4, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ERNEST GALLEGOS,
Petitioner - Appellant,
v. No. 11-2093
(D. New Mexico)
ERASMO BRAVO, Warden; THE (D.C. No. 1:10-CV-00372-JB-KBM)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
Proceeding pro se, Ernest Gallegos seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). After a jury trial, Gallegos was convicted of
murder, kidnapping, aggravated burglary, armed robbery, aggravated battery, and
tampering with evidence. State v. Gallegos, 206 P.3d 993, 996 (N.M. 2009). His
convictions were affirmed by the Supreme Court of New Mexico. Id. at 1003.
Gallegos sought, and was denied, state post-conviction relief. He filed his timely
§ 2254 petition in federal district court on April 15, 2010.
In his § 2254 petition, Gallegos presented the following nine claims: (1) he
was denied meaningful access to the courts because he did not have access to a
law library to prepare his § 2254 petition, (2) he is actually innocent, (3) the state
withheld exculpatory evidence, (4) the state fabricated evidence, (5) the state
knowingly destroyed exculpatory evidence, (6) the jury returned inconsistent
verdicts, (7) he was punished multiple times for the same criminal conduct, (8)
the district court erred by applying a firearm enhancement to his sentence because
the jury did not find that he possessed a firearm, and (9) he was denied effective
assistance of counsel. Gallegos’s petition was referred to a magistrate judge who
meticulously examined each of his claims. In a comprehensive report and
recommendation, the magistrate judge concluded Gallegos’s access-to-the-courts
claim, ineffective assistance claim relating to the grand jury instructions, and
freestanding claims of actual innocence were not cognizable in a federal habeas
corpus proceeding. Applying the standards set out in the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), the magistrate judge also concluded the
New Mexico courts’ adjudication of Gallegos’s remaining claims was not
contrary to, nor an unreasonable application of clearly established federal law. 28
U.S.C. § 2254(d). The magistrate judge recommended that Gallegos’s § 2254
petition be dismissed with prejudice.
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Gallegos received notice in the report and recommendation that he was
required to file any objections he might have within fourteen days after receiving
the report. The notice was conspicuously outlined by a bold box and specifically
warned Gallegos that the failure to file objections would constitute a waiver of
those objections on subsequent appellate review. Gallegos’s written objections
consisted of the following paragraph, repeated twenty separate times in his filing:
Petitioner objects to this proposed dismissal on the grounds that
applicable law and applications thereof have not been followed and
that his petition has been prejudice [sic] through purposly [sic]
removing pieces of the record proper. That (AEDPA) standards are a
mixed question of law and facts that can only be farreted [sic] out in
an evidentiary hearing before the court.
This court has “adopted a firm waiver rule when a party fails to object to the
findings and recommendations of the magistrate.” Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991). “Our waiver rule provides that the failure to
make timely objection to the magistrate’s findings or recommendations waives
appellate review of both factual and legal questions.” Id. The district court
recognized the potential application of this court’s firm waiver rule, but
nevertheless considered Gallegos’s general objections de novo. In an abundance
of caution, the court also addressed the merits of all the claims upon which
Gallegos could argue for application of the interests-of-justice exception to the
firm waiver rule. See id. (“The waiver rule as a procedural bar need not be
applied when the interests of justice so dictate.”). After a comprehensive analysis
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of those claims, the district court adopted the proposed findings and
recommended disposition of the magistrate judge and denied Gallegos’s habeas
petition.
In his application for a COA, Gallegos has simply reproduced all the claims
he raised in his § 2254 petition. Additionally, he challenges the district court’s
decision that an evidentiary hearing was not necessary to resolve his claims. He
does not, however, address the firm waiver rule or argue that either of the two
exceptions to the waiver rule apply in this case. See Talley v. Hesse, 91 F.3d
1411, 1412-13 (10th Cir. 1996) (“This rule does not apply, however, when . . . the
magistrate’s order does not clearly apprise a pro se litigant of the consequences of
a failure to object.”); Moore, 950 F.2d at 659. Because Gallegos’s terse and rote
objections to the magistrate judge’s findings and recommendations are
insufficient to avoid application of the firm waiver rule, this court concludes
Gallegos has not preserved for appellate review any of the claims raised in his
§ 2254 petition. See United States v. One Parcel of Real Property, 73 F.3d 1057,
1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate judge’s report
and recommendation must be both timely and specific to preserve an issue for de
novo review by the district court or for appellate review.”). Further, because
Gallegos’s claims were capable of being resolved on the record, the district court
did not abuse its discretion by failing to hold an evidentiary hearing. See Torres
v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).
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This court denies Gallegos’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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