F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
AUGUSTINE DANIEL ROYBAL,
Petitioner-Appellant,
v. No. 96-2096
(D.C. No. CIV-92-1249-BB)
JOHN SHANKS, Warden, (D. N.M.)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, 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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Petitioner Augustine Daniel “Goro” Roybal filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 arguing that his conviction for
aggravated burglary was unconstitutional because there was insufficient evidence
to convict and, further, that the trial court erred in refusing to give particular jury
instructions. The district court denied the petition. We grant petitioner’s motion
for a certificate of probable cause, 1 and we affirm.
Testimony at trial revealed that petitioner and his brother and co-defendant,
Juan Roybal, gained access to the apartment of Darlene Rodriguez early in the
morning of February 3, 1989. Juan Roybal was armed and demanded to see
Darlene’s friend, Guillermo “Mimo” Quintero, who was asleep in a back
bedroom. As Juan walked to the bedroom, petitioner took Darlene and walked her
to the kitchen. He would not allow her to leave the kitchen and told her that, if
1
The Supreme Court recently held that the new provisions of Chapter 153 of
Title 28 of the United States Code, which includes § 2253(c) requiring certificates
of appealability, added by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), are generally not applicable to cases filed before AEDPA’s
effective date, April 24, 1996. See Lindh v. Murphy, No. 96-6298, 1997 WL
338568, at *8 (U.S. June 23, 1997). Lindh effectively overrules Lennox v. Evans,
87 F.3d 431 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), to the extent
that Lennox held that § 2253(c) applied to habeas petitions filed prior to
AEDPA’s effective date. Because the habeas petition in this case was filed prior
to that date, petitioner is not subject to AEDPA, but he is subject to § 2253's
previous requirement that he obtain a certificate of probable cause to appeal.
Regardless of which label applies, petitioner’s substantive burden is the same. As
we held in Lennox, both certificates of probable cause and of appealability
require that a petitioner “make a substantial showing of the denial of a federal
constitutional right.” 87 F.3d at 434.
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she attempted to leave the building, she would be shot. While in the kitchen,
Darlene heard Juan and Mimo arguing about money and then heard a gunshot.
After the first shot, Darlene and petitioner ran to the bedroom where they
witnessed Juan fire a second shot, this one hitting Mimo in the neck. During the
interim between the two shots, petitioner urged his brother to stop the shooting
and indicated that the pair had not contemplated gunplay. He did not, however,
attempt to interfere physically with his brother’s actions. In the course of the
episode, petitioner took a pair of Mimo’s pants, apparently believing that keys to
a car would be in the pants. 2
We conduct a de novo review of the legal basis for the district court’s
dismissal of the petition. See Sena v. New Mexico State Prison, 109 F.3d 652,
653 (10th Cir. 1997). The power of the federal courts in habeas proceedings is
limited. See Barefoot v. Estelle, 463 U.S. 880, 887 (1983). A state prisoner is
eligible for habeas relief only if he can demonstrate “state court errors which
deprived him of fundamental rights guaranteed by the Constitution of the United
States.” Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir. 1979). In making the
determination of constitutionality, we are bound by the state court’s interpretation
of state law, see Mullaney v. Wilbur, 421 U.S. 684, 691 (1975), and, unless they
are not fairly supported by the record, we accord a presumption of correctness to
2
The keys were later found in the apartment; the car was not taken.
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a state court’s factual findings, see Lujan v. Tansy, 2 F.3d 1031, 1035 (10th Cir.
1993) (“Explicit and implicit findings by state trial and appellate courts shall be
presumed to be correct unless one of seven factors listed in section 2254(d) are
present or the federal court concludes that the state court findings are not fairly
supported by the record.”) (quotation omitted).
INSUFFICIENT EVIDENCE
We turn first to petitioner’s contention that he was denied his rights under
the Fourteenth Amendment because he was convicted on insufficient evidence.
When a state prisoner brings a habeas petition challenging the sufficiency of the
evidence, we review the evidence in the light most favorable to the prosecution to
determine whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 318 (1979).
In New Mexico, the pertinent elements of aggravated burglary are:
the unauthorized entry of any . . . dwelling . . . with intent to commit
any felony or theft therein and the person either:
A. is armed with a deadly weapon;
B. after entering, arms himself with a deadly weapon;
C. commits a battery upon any person while in such place, or in
entering or leaving such place.
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N.M. Stat. Ann. § 30-16-4. Petitioner argues that the evidence presented at his
trial was deficient in two respects in relation to this statute: it did not establish
unauthorized entry, and it did not establish his intent to commit a felony or theft
at the time of entry.
Authorization to Enter
Petitioner bases much of his argument regarding the nature of his entry on
Officer Schultz’s recap of the statement given to him by Darlene Rodriguez
shortly after the crime. Officer Schultz testified that Darlene told him she
recognized petitioner as an acquaintance or associate of her boyfriend, Mimo, and
that she “closed the door, unlatched it, opened the door and let them in.” R. Tr.
11/1/89 at 62. Officer Schultz further testified he had not noticed any damage to
the door or the chain lock and that no such damage had been reported to him by
the other investigators. Id. at 86.
However, when Officer Schultz was asked to read from Darlene’s actual
statement, he read the following: “I heard a knock at the door and asked who was
it. He said it was Johnny, open the door. I had a chain lock on the door and John
pushed his way in.” Id. at 115. In response to the question of whether he could
identify any place in the statement where Darlene indicated she opened the door
to Daniel Roybal, Officer Schultz confusingly stated, “I don’t know that she
specifically -- she opened because she recognized him, yes.” Id. at 116.
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The colloquy between the prosecutor and Darlene Rodriguez regarding the
entry issue was as follows:
Q. When Juan [Darlene’s infant son] awakened you, what did you do?
A. I got up to make him a bottle. I was in the kitchen making the bottle.
About 2:00, I heard a knock on the door.
....
Q. When you heard the knock, what did you do?
A. I asked who it was, he said it was John [Juan].
Q. And after you heard that, what happened?
A. I was going to open the door, he just pushed his way in.
Q. And was the door locked with a chain?
A. If I can remember right, yeah, it was, yes.
Q. You say he pushed his way in, what do you mean by that?
A. He pushed his way in. I opened the door, I didn’t have it all the way
open and he pushed his way in.
R. Tr. 10/31/89 p.m. at 3-4.
After describing Juan’s entry and the way he brandished a gun in her face,
Darlene was asked,
Q. Okay. Did anyone else come in through the front door besides the
individual with the gun?
A. Yeah, he pushed the door back and I was standing half behind the
door, half my body behind the door, holding it and then Augustine
Daniel Roybal came in.
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Q. And how did he tell -- do you remember the exact words?
A. He came in. I just said, “Come in.”
Q. Did you call him by name, or --
A. Just told him to come in.
Id. at 4-5.
Upon cross examination by Juan’s attorney, the following testimony was
elicited from Darlene:
Q. Now when the people entered your apartment on February 3d at 2:00
in the morning, you testified on direct that they pushed the door
open?
A. Yes.
Q. Could you see Goro -- Daniel at that time?
A. No, he was behind the wall.
Q. And they pushed the door open even though you had a chain lock on;
isn’t that right?
A. Yes.
Q. But on September 12th, you talked about how the door frame had
been broken; isn’t that right?
A. Yes.
Q. So, the chain lock was broken at that time?
A. It wasn’t broken in, just the frame of the door.
Q. So there was a lock attached to the chain lock too, at that point?
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A. Yeah, it was attached to the wall, but it wasn’t tight enough.
Q. You told Chris Schultz on February 3d that you let them in?
A. I can’t remember exactly everything that’s happened.
Id. at 37.
The New Mexico Court of Appeals, in the calendar notice proposing
summary affirmance of petitioner’s conviction for aggravated burglary, relied on
a representation in the docketing statement recounting testimony by Darlene
Rodriguez that “the men forced their way in.” See R. Vol. I, tab 6, Exh. C at 2.
The calendar notice concluded that, “the jury was entitled to believe this trial
testimony and disbelieve the statement to Schultz, thereby providing substantial
evidence of the element of unauthorized entry.” Id. The Court of Appeals
adopted this reasoning in its memorandum opinion. See id., Exh. E at 1.
Despite the occasionally confused quality of the testimony regarding the
circumstances of petitioner’s entry into the apartment, we find that the record
fairly supports the jury’s finding that petitioner made an unauthorized entry into
the dwelling. When viewed in a light most favorable to the state, a rational trier
of fact could have found the element of unauthorized entry beyond a reasonable
doubt. See Jackson, 443 U.S. at 318.
Intent to Commit Any Felony or Theft
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Turning to the intent issue, petitioner argues that there was no evidence to
establish that, at the time of entry, he shared his brother’s criminal intent and that
he did not help, encourage or cause the crime committed by his brother. He
maintains he was “merely present” at the scene. We disagree. Despite evidence
in the record tending to show that petitioner did not condone the shooting, there is
also evidence that his participation was instrumental in facilitating the crime and
that he intended to commit theft, aggravated assault, or some other felony at the
time of entry into the apartment with his brother.
Immediately after petitioner’s brother left the hallway to confront Mimo in
the bedroom, petitioner took Darlene to the kitchen and told her that if she left the
apartment she would be shot by persons waiting outside. R. Tr. 10/31/89 p.m. at
5-6. Petitioner refused to allow Darlene to leave the kitchen, even to be with her
children in the bedroom. Id. at 23. Darlene told Officer Schultz that, after the
first shot was fired, she tried to get out of the kitchen but was prevented from
doing so by petitioner. Id. at 39. She had wanted to call the police but could not
because she was being held by petitioner. R. Tr. 11/1/89 at 35.
In addition to keeping Darlene from interfering with the assault, there is
also evidence that petitioner did nothing physically in order to interrupt the
assault. After the first shot was fired, petitioner ran back to the bedroom and
stood an arm’s length from his brother but did nothing other than question his
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brother about the shooting. R. Tr. 10/31/89 p.m. at 24. Further, while his brother
held a gun to Mimo’s head, petitioner took Mimo’s pants which supposedly held
keys to a car. R. Tr. 11/1/89 at 37. Darlene testified that the men had said, in her
presence, that they wanted the keys to the car. Id.
Finally, Darlene’s sister, Dana, testified that she was familiar with
petitioner’s voice and that she heard him say, “Give it to him or he’ll shoot,” as
petitioner’s brother and Mimo were arguing. Id. at 43.
In its calendar notice, the New Mexico Court of Appeals, citing New
Mexico law, noted that “the fact that a theft was committed allows the jury to
infer the requisite intent.” R. Vol. I, tab 6, Exh. C at 2. We are bound by this
interpretation of state law. See Mullaney, 421 U.S. at 691. Further, the court
concluded that “from the evidence of what his brother did to the victim the jury
could infer defendant’s shared intent to commit aggravated assault.” Id. The
Court of Appeals relied on this analysis to conclude that “defendant and his
co-defendant forced their way into the house under circumstances indicating they
shared an intent to commit crimes inside.” Id., Exh. E at 2. This finding of fact
is presumptively correct because it is fairly supported by the record, see Lujan,
2 F.3d at 1035. In addition, our review of the record reveals evidence sufficient
for a rational trier of fact to find beyond a reasonable doubt that petitioner
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intended to commit a felony upon entering the apartment. See Jackson, 443 U.S.
at 318.
JURY INSTRUCTIONS
A § 2254 petitioner has a heavy burden in attempting to set aside a state
conviction based on an erroneous jury instruction. Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995).
A state conviction may only be set aside in a habeas proceeding on
the basis of erroneous jury instructions when the errors had the effect
of rendering the trial so fundamentally unfair as to cause a denial of
a fair trial. The burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a collateral attack
on the constitutional validity of a state court’s judgment is even
greater than the showing required to establish plain error on direct
appeal. The question in this proceeding is not whether the
instruction is undesirable, erroneous, or even universally condemned,
but whether the instruction so infected the trial that the resulting
conviction violates due process. An omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement of the
law. The degree of prejudice from the instruction error must be
evaluated in the context of the events at the trial.
Id. (quotations and citations omitted).
Petitioner does not argue that any of the instructions given to the jury were
erroneous. He contends, instead, that two of his proposed instructions should
have been given and that their omission denied him a fair trial. As noted above,
even the heavy burden faced by a habeas petitioner who complains about an
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alleged erroneous instruction becomes heavier when the error alleged is the
omission of a proffered instruction.
The first instruction petitioner contends should have been read to the jury
can be summarized as telling the jury that petitioner’s mere presence at the crime
scene and knowledge that a crime was being committed was not enough to convict
him as an aider and abetter. 3 The New Mexico Court of Appeals concluded that,
because the instruction on accomplice liability told the jury they would have to
find that the defendant intended that the crime be committed and had to have
helped or encouraged it, petitioner’s “mere presence” point was made, albeit in
the positive. The court stated, “[i]t was, therefore, unnecessary to tell the jury
that, if defendant was merely present and did not share the intent of the principal
and did not help the principal, the jury should find him not guilty.” R. Vol. I, tab
6, Exh. E at 2. We agree and find no constitutional infirmity in the trial court’s
refusal to give petitioner’s “mere presence” instruction.
Similarly, there was no violation of constitutional magnitude in the trial
court’s refusal to give petitioner’s tendered specific intent instruction which
stated, inter alia, that “the government [sic] must prove that the defendant
knowingly did an act which the law forbids, purposely intending to violate the
3
The proposed “mere presence” instruction and the instructions actually
given are set out in petitioner’s brief in chief at page 12, notes 3 and 4. We will
not repeat them here.
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law.” Appellant’s Brief in Chief at 15 n.6. The intent instruction was not a
uniform instruction and, according to the New Mexico Court of Appeals, did not
accurately state New Mexico law, where “specific intent is not a specific purpose
to violate the law but simply an intent to achieve a further consequence.” R.
Vol. I, tab 6, Exh. C at 3. We are bound by this state court construction of state
law. See Mullaney, 421 U.S. at 691. Additionally, each substantive crime
instruction given included the idea that the intent to achieve further consequences
must be proven. See, e.g., Record Proper, Vol. I at 85 (aggravated burglary
instruction).
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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