UNITED STATES COURT OF APPEALS
Filed 5/29/96
TENTH CIRCUIT
ANDREW PEREZ, )
)
Petitioner-Appellant, )
)
vs. ) No. 95-2195
) (D.C. No. CIV 92-0101 MV/JHG)
JOHN THOMAS, Warden, ) (D. N.M.)
)
Respondent-Appellee. )
ORDER AND JUDGMENT*
Before TACHA, McWILLIAMS, and BALDOCK, Circuit Judges.
Petitioner Andrew Perez appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition for writ of habeas corpus. We exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm.
In 1989, a jury convicted Petitioner in New Mexico state court of criminal sexual
penetration, kidnaping, and bribery or intimidation of a witness. On direct appeal, the
New Mexico Court of Appeals affirmed Petitioner’s conviction, and the New Mexico
Supreme Court denied Petitioner’s petition for writ of certiorari. Petitioner
*
This order and judgment is not binding precedent, except under the doctrines of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.
unsuccessfully sought habeas corpus relief in New Mexico state court. The New Mexico
Supreme Court declined certiorari review of the dismissal of Petitioner’s state habeas
corpus petition on December 16, 1991.
On January 29, 1992 Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in the district court. The district court dismissed the petition
with prejudice based on a magistrate judge’s recommended disposition. On appeal,
Petitioner argues the district court erred in dismissing his § 2254 petition for a writ of
habeas corpus. Specifically, Petitioner asserts: (1) the district court erred in holding he
was procedurally barred from claiming that his Sixth Amendment right to confront
witnesses was violated when the trial court excluded evidence of the victim’s prior sexual
activity with Petitioner; (2) his trial counsel rendered constitutionally ineffective
assistance of counsel by failing to preserve his Sixth Amendment confrontation claim;
(3) this court should excuse his procedural default of his claim regarding his prior sexual
relationship with the victim on the basis of cause and prejudice or a fundamental
miscarriage of justice; (4) his conviction was obtained in violation of his Sixth
Amendment confrontation rights when the trial court refused to allow Petitioner to cross
examine the victim about her prior sexual relationship with Petitioner and her prior sexual
activity with a third party; and (5) Petitioner’s convictions for kidnaping and criminal
sexual penetration constitute double jeopardy in violation of the Fifth Amendment.
We have reviewed Petitioner’s brief, the parties’ oral arguments, the magistrate
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judge’s recommended disposition, the district court’s order, and the entire record before
us. Based upon our review of the record, we have determined there is no reversible error
and AFFIRM the district court’s dismissal of Petitioner’s § 2254 petition.
AFFIRMED.
Entered for the Court
Bobby R. Baldock
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