F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 21, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A N TH O NY EA RL K EN N ED Y ,
Petitioner - A ppellant, No. 05-2363
v. (D. New M exico)
ERASM O BRAVO, W arden, Lea (D.C. No. CV -04-506 M V/LCS)
County Correctional Facility;
A TTO RN EY G EN ER AL FO R THE
STA TE OF N EW M EX IC O,
Respondents - Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
Appellant Anthony Earl Kennedy is currently serving a seven-year sentence
for cocaine trafficking in violation of New M exico law. He appealed to the New
M exico Court of Appeals, which affirmed his conviction. The New M exico
Supreme Court denied his petition for a writ of certiorari. On M ay 7, 2004,
*
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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
M r. Kennedy filed an application for a writ of habeas corpus under 28 U.S.C.
§ 2254 in the United States District Court for the District of New M exico. In his
application M r. Kennedy alleged (1) that his conviction was supported by
insufficient evidence, and (2) that his trial counsel was constitutionally
ineffective. The magistrate judge’s “Proposed Findings and Recommended
Disposition” (Findings and Recommendation) rejected his claims as meritless.
On October 31, 2005, the district court adopted the magistrate judge’s findings
and denied M r. Kennedy’s application. The district court did not address whether
to grant M r. K ennedy a certificate of appealability (COA), see 28 U.S.C.
§ 2253(c)(1) (requiring a COA), w hich we deem a denial. See United States v.
Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000). M r. Kennedy now seeks a
COA from this court to appeal the district court’s decision. W e deny a COA and
dismiss the appeal.
At trial the state presented testimony from Detective Jerry Belotti of the
Albuquerque Police Department that he had purchased a rock of crack cocaine
from M r. K ennedy for $20 as part of a “buy/bust” operation on M arch 18, 2002.
A small rock of cocaine— purportedly the drugs sold by M r. Kennedy to Detective
Belotti— was admitted into evidence over M r. Kennedy’s objection that a
discrepancy in the date in a notation on the evidence tag indicated a break in the
chain of custody.
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M r. Kennedy alleges a due-process violation because the evidence at trial
was insufficient to support his conviction. He argues that the alleged discrepancy
in the date on the evidence tag indicates that there was no physical evidence in his
case and that the prosecution deliberately used false evidence and false testimony
to convict him. He also claims that his trial counsel was constitutionally
ineffective in failing to investigate and challenge this key evidence and for
insisting on pursuing an entrapment defense over M r. Kennedy’s objections. The
district court adopted the magistrate judge’s conclusions that the evidence was
more than sufficient to sustain M r. Kennedy’s conviction and that his trial
counsel’s cross-examination of the forensic chemist and objection to the proffered
physical evidence indicated an adequate investigation of the potential evidentiary
challenges.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id.
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The A ntiterrorism and Effective D eath Penalty Act of 1996 (AEDPA),
provides that when a claim has been adjudicated on the merits in state court, a
federal court will grant habeas relief only when the applicant establishes that the
state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
Under the “contrary to” clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the [Supreme] Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, relief is provided
only if the state court identifies the correct governing legal principle
from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment
that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotations,
citations and brackets omitted). “AEDPA’s deferential treatment of state court
decisions must be incorporated into our consideration of a habeas petitioner’s
request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
The district court’s resolution of M r. Kennedy’s constitutional claims was
neither wrong nor debatable. The state presented evidence— particularly the
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testimony of Detective Belotti— sufficient for the jury to find M r. Kennedy guilty
of cocaine trafficking. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (in
reviewing a habeas attack on the sufficiency of evidence to support a conviction,
“the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”). The state court’s
rejection of M r. Kennedy’s sufficiency-of-the-evidence argument was
undebatably not an unreasonable application of federal law.
As for M r. Kennedy’s ineffectiveness claim, the magistrate judge’s
Findings and Recommendation cogently explains that M r. Kennedy has failed to
point to any deficiency of his attorney in investigating the case or challenging its
physical evidence. And in light of the evidence of guilt, counsel’s decision to
pursue an entrapment defense was clearly within the realm of acceptable strategy.
W e DENY M r. K ennedy’s request for a COA and DISM ISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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