F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 13, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TIM O TH EO U S TH O MPSO N ,
Petitioner-A ppellant, No. 06-2240
v. District of New M exico
JAM ES JANECKA, W arden; (D.C. No. CIV-05-1121 BB/W PL)
A TTO RN EY G EN ER AL O F THE
STA TE OF N EW M EX IC O,
Respondents-Appellees.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
Timotheous Thompson, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) that would allow him to appeal from the district
court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28
U.S.C. § 2253(c)(1)(A). Because w e conclude that M r. Thompson has failed to
make “a substantial showing of the denial of a constitutional right,” w e deny his
request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
A jury convicted M r. Thompson in N ovember 2002 of aggravated burglary
and breaking and entering. He was sentenced thereafter to thirteen years in
prison, followed by two years parole. A fter unsuccessfully challenging his
conviction on direct appeal, M r. Thompson sought state habeas corpus relief. H e
was denied. As a last resort, M r. Thompson filed a 28 U.S.C. § 2254 pro se
application for a writ of habeas corpus before the District Court for the District of
New M exico. That court denied his application and his request for a certificate of
appealability.
The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(A). A COA is appropriate “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). In order to make such a showing, a petitioner must demonstrate that
“reasonable jurists could debate whether . . . 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). This case leaves no room for
reasonable debate.
M r. Thompson offers four arguments as to why he should be allowed to
proceed with his habeas appeal. He contends that the district court denied him “a
fair and impartial trial” by refusing to admit certain pieces of evidence M r.
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Thompson considers exculpatory. He claims he suffered from ineffective
assistance of counsel. He accuses the government of prosecutorial misconduct for
facilitating witness perjury, and he argues that the eleven-member jury which
convicted him was unconstitutional. None of these contentions suffices to
demonstrate the denial of a constitutional right.
M r. Thompson argues first that the district court’s refusal to admit evidence
establishing a domestic relationship between himself and Tonya Ligon, the
woman whose house he illegally entered, eviscerated his defense and effectively
denied him due process of law. The district court characterized this argument as
a challenge to the sufficiency of the evidence. Perhaps that is an accurate
construal of M r. Thompson’s petition to the district court, but M r. Thompson has
not made a sufficiency argument to this Court. Instead, he has squarely
challenged the trial court’s evidentiary rulings. He did not, however, challenge
those rulings on direct appeal. As a result, the New M exico Court of Appeals
rejected this argument when M r. Thompson raised it in his state habeas petition,
noting that New M exico state law bars post-conviction relief on grounds available
but not raised during direct appeal. State v. Beachum, 494 P.2d 188, 189 (N .M .
Ct. A pp. 1972).
W e reject it as well. W hen a state prisoner has defaulted his federal claims
in state court “pursuant to an independent and adequate state procedural rule,”
federal habeas review is barred, unless the petitioner “can demonstrate cause for
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the default and actual prejudice as a result.” Coleman v. Thom pson, 501 U.S.
722, 750 (1991). M r. Thompson has demonstrated neither cause nor actual
prejudice. His evidentiary challenge is therefore defaulted and beyond our
purview.
Next, M r. Thompson claims that he suffered ineffective assistance of
counsel. To establish ineffectiveness, M r. Thompson must show that his
counsel’s performance fell below an objective standard of reasonableness and
that, but for his counsel’s deficient performance, the outcome at trial would likely
have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). M r.
Thompson makes neither showing. His primary complaint is that his attorney
failed to call witnesses w ho could have testified to his ongoing domestic
relationship with M s. Ligon. But a personal relationship with the victim is no
defense to the crime of burglary or breaking and entering. N.M . Stat. Ann. §§ 30-
14-8, 30-16-4 (1978). M r. Thompson’s counsel was not ineffective for refusing
to mount a wholly irrelevant defense.
W hereas M r. Thompson argued to the district court that the government
failed to disclose potentially exculpatory evidence, he now argues in his third
claim to this Court that the prosecution “knowingly permitted perjuried [sic]
testimony from [the] victim of [the] crime,” that is, M s. Ligon. App. Br. at 2.
This is a new argument not raised below. As we have said time and again, we
will not consider claims waived or abandoned in the district court. Leprino Foods
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Co. v. Factory M ut. Ins. Co., 453 F.3d 1281, 1285 n.1 (10th Cir. 2006). An
appeal is not the proper venue for rehearsing new theories.
Finally, we reject M r. Thompson’s contention that conviction by an eleven-
member jury violated his due process rights. The U.S. Constitution affords
defendants no right to a twelve-person jury. Burch v. Louisiana, 441 U.S. 130,
137 (1979). New M exico, on the other hand, apparently does guarantee its
defendants twelve-member juries, but the right can be waived. State v. M cFall,
354 P.2d 547, 548 (N.M . 1960); see State v. M arrujo, 443 P.2d 856, 857 (N .M .
1968) (trial by jury may be waived). Here again, the New M exico Court of
Appeals ruled that M r. Thompson had abandoned this objection by failing to
lodge it at trial or on direct appeal. The failure to raise an issue on direct appeal
constitutes an independent and adequate state procedural ground that generally
precludes this Court from revisiting the issue. Jackson v. Shanks, 143 F.3d 1313,
1318 (10th Cir. 1998).
Accordingly, we D EN Y M r. Thompson’s request for a COA and DISM ISS
this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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