F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 4 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID PADILLA,
Petitioner-Appellant,
v.
No. 00-2043
DONALD DORSEY, Warden, (D.C. No. CIV-98-1135-JC)
Torrance County Detention Center; (District of New Mexico)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
This case is before the court on David Padilla’s pro se request for a
certificate of appealability (“COA”). Padilla seeks a COA so that he may appeal
the district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.
§ 2253(c)(1)(A) (stating that no appeal may be taken from an order denying relief
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
in a § 2254 petition unless the petitioner-appellant first obtains a COA). Because
Padilla failed to make “a substantial showing of the denial of a constitutional
right” in accordance with the requirements of 18 U.S.C. § 2253(c)(2), this court
finds that he is not entitled to a COA.
Padilla was convicted in New Mexico state court on January 29, 1996 on
three counts of armed robbery, one count of attempt to commit armed robbery,
and two counts of conspiracy to commit armed robbery. On April 29, 1996, he
was sentenced to 27 years imprisonment, of which nine years was suspended.
Padilla then appealed his conviction, alleging insufficient evidence to support the
conviction, abuse of the Court’s discretion in using two separate juries while
joining Padilla’s trial with that of co-defendant Sanchez, other trial errors, and
ineffective assistance of counsel. Padilla’s conviction was affirmed by the New
Mexico Court of Appeals on May 7, 1998. The New Mexico Supreme Court
denied certiorari on June 25, 1998.
Padilla filed the instant § 2254 habeas petition on September 16, 1998
claiming (1) that he was prejudiced as a result of dual juries in a single trial and
(2) that he was denied effective assistance of counsel in that his attorney failed to
object when a venire member was named to the jury, even though this individual
had been the subject of a peremptory challenge by defendant.
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Because Padilla filed his federal habeas petition after April 24, 1996, his
petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”). See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir.
1999). The district court, adopting the report and recommendation of the
magistrate judge, concluded that Padilla’s petition should be dismissed because
(1) the New Mexico Court of Appeals’ opinion that there was no Bruton violation,
see Bruton v. United States, 391 U.S. 123 (1968), as a result of the dual juries and
no prejudice to Padilla was not an unreasonable application of federal law and (2)
the loss of a peremptory challenge does not rise to the level of a constitutional
violation.
Padilla now argues before this court only his claim that he was prejudiced
as a result of dual juries in a single trial. After reviewing the relevant case law,
the file and the arguments made by Padilla, both below and to this court, we
conclude that he has not made a substantial showing of the denial of a
constitutional right for substantially the same reasons Padilla’s claims were
rejected by the federal district court. Accordingly we DENY COA and the appeal
is DISMISSED. Moreover, because we find that Padilla’s appeal is frivolous and
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fails to present a substantial question, we DENY his motion to proceed in forma
pauperis.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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