F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 14 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DENNIS ESCARENO,
Petitioner-Appellant,
v. No. 01-2317
ERASMO BRAVO, Warden,
Guadalupe County Correctional
Facility; ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER *
Before EBEL , HENRY , 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.
This matter is before the court on Dennis Escareno’s pro se request for
a certificate of appealability (COA). Mr. Escareno seeks a COA so that he can
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from
a final order denying a § 2254 habeas petition unless petitioner first obtains
a COA). This court denies his request for a COA and dismisses this appeal. 1
In 1999, Mr. Escareno was convicted in New Mexico state court of false
imprisonment and aggravated battery. As a result of his habitual offender status,
he received a term of imprisonment of nine and a half years, plus two years of
parole. The New Mexico Court of Appeals affirmed his conviction on direct
appeal, and the New Mexico Supreme Court denied review. He filed a state
habeas petition, which was denied, and the New Mexico Supreme Court denied
certiorari.
Mr. Escareno then filed this § 2254 habeas petition in federal district court
incorporating by reference the claims he raised in his state habeas petition and the
related petition for certiorari. The parties are familiar with the facts, so we need
not repeat them here. Construed liberally, Mr. Escareno’s § 2254 petition asserts
that (1) the trial court violated his constitutional rights when it disallowed the
1
The notice of appeal was filed past the thirty-day deadline set by
Fed. R. App. P. 4(a)(1)(A), but the district court granted Mr. Escareno’s
timely request for an extension of time. See id . Rule 4(a)(5)(A). Accordingly,
this court has appellate jurisdiction. Hinton v. City of Elwood , 997 F.2d 774,
778-79 (10th Cir. 1993) (stating that “Rule 4(a)(5) permits the district court’s
approval of a timely motion to extend to validate a prior notice of appeal”).
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admission of the victim’s hospital records, which he asserts were exclupatory;
(2) the prosecutor violated his constitutional rights by not introducing these
hospital records or the testimony of hospital personnel; (3) his counsel was
constitutionally ineffective because he failed to have an expert witness available
to authenticate and interpret the hospital records, resulting in the district court’s
exclusion of such evidence; and (4) during closing argument, the prosecutor
commented improperly on Mr. Escareno’s right not to testify.
The district court referred the matter to a magistrate judge, who reviewed
all of the trial court records and testimony and all of the state court appellate and
habeas proceedings, and prepared a detailed, thorough and carefully reasoned
report and recommendation. The district court adopted the magistrate judge’s
report and dismissed the § 2254 petition. Briefly summarized, the magistrate
judge concluded that:
(1) the trial court did not abuse its discretion in excluding the hospital
records and their exclusion did not deprive Mr. Escareno of any federal
constitutional rights;
(2) the prosecutor was not obligated to present defense witnesses or
evidence and did not commit any violation of Brady v. Maryland , 373 U.S. 83
(1963), because both the police and prosecutor fully disclosed the allegedly
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exculpatory information to defense counsel, who possessed the medical records in
question;
(3) Mr. Escareno did not receive constitutionally ineffective assistance of
counsel because (a) he was not prejudiced by the allegedly defective legal
assistance because his counsel did introduce evidence in support of
Mr. Escareno’s theory that the hospital records did not corroborate all of the
victim’s alleged injuries, and admission of the hospital records would not have
altered the result of the proceeding because there was substantial, compelling
witness testimony corroborating the extent of the victim’s injuries when she was
in the hospital and the day after her release, see Strickland v. Washington ,
466 U.S. 668, 694 (1984), and (b) his counsel’s performance did not so deny
Mr. Escareno representation that prejudice should be presumed; and
(4) the prosecutor’s closing argument comments, taken in context, were
within the bounds of reasonable argumentation, see Pickens v. Gibson , 206 F.3d
988, 999 (10th Cir. 2000) (holding that prosecutor free to comment on
defendant’s failure to call certain witnesses or present certain testimony).
Issuance of a COA is jurisdictional. Miller-El v. Cockrell , 123 S. Ct. 1029,
1039 (2003). A COA can issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating that jurists of reason could
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disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El , 123 S. Ct. at 1034. We have reviewed
Mr. Escareno’s application for a COA and appellate brief, the magistrate judge’s
report and recommendation, the district court order, and the entire record on
appeal pursuant to the framework set out in Miller-El . This court concludes that
the requirements for issuance of a COA have not been met because the magistrate
judge’s and district court’s resolution of Mr. Escareno’s claims are not reasonably
subject to debate and the claims are not adequate to deserve further proceedings.
Accordingly, this court DENIES the request for a COA and DISMISSES the
appeal. The mandate shall issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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