Thrasher v. Hickson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

NATALIE THRASHER,

Petitioner-Appellant,
No. 11-2075
v. (D.C. No. 1:09-CV-00231-MV-WDS)
(D.N.M.)
ARLENE HICKSON, Warden; GARY
K. KING, Attorney General of the
State of New Mexico,

Respondents-Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Natalie Thrasher, a New Mexico prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of her

application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. 1

*
This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Because Ms. Thrasher is proceeding pro se, we construe her filings
(continued...)
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny the COA

and dismiss her appeal.

BACKGROUND

After conducting a controlled buy of illegal drugs at Ms. Thrasher’s

apartment in April 2005, officers of the Albuquerque Police Department obtained

a warrant to search her residence. Ms. Thrasher was present during the search

and admitted to having crack cocaine in her purse. She later stipulated that the

amount was 6.3 grams. Officers also discovered $2018 in cash in Ms. Thrasher’s

purse and jacket, some of which was arranged in the form of “drug wallets”

(folded in half and separated into increments of $100). Officers found no drug

paraphernalia in the apartment (a fact allegedly consistent with an intent to

distribute the cocaine and inconsistent with simple possession for personal use).

The cash was returned to Ms. Thrasher prior to her trial.

In February 2006, following trial before a jury, Ms. Thrasher was convicted

of one count of drug trafficking (by possession with intent to distribute). In May

2006, Ms. Thrasher was sentenced to 18 years’ imprisonment, followed by two

years of parole. Her conviction was affirmed on appeal, and the New Mexico

Supreme Court denied certiorari on January 4, 2008.

On June 24, 2008, Ms. Thrasher filed a petition for writ of habeas corpus in

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liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

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New Mexico state court. That court, construing her claims as involving

ineffective assistance of counsel, denied relief. 2 Ms. Thrasher then sought a writ

of certiorari from the New Mexico Supreme Court, which was denied.

On March 6, 2009, Ms. Thrasher filed an application for a writ of habeas

corpus in federal district court pursuant to 28 U.S.C. § 2254. See R. at 4 (Appl.

for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed Mar. 6, 2009). In

her application, Ms. Thrasher raised five claims, each with numerous sub-issues.

One of these claims was ineffective assistance of counsel. See id. at 20. The

other four were (1) that the state habeas court abused its discretion in refusing to

grant an evidentiary hearing, (2) that the trial court violated her right to a fair trial

by refusing to allow defense witnesses to testify, (3) that the trial court erred in

denying her motions for mistrial and directed verdict, and (4) that the trial court

2
In her state habeas petition, Ms. Thrasher put forward numerous
claims, framed both as distinct varieties of ineffective assistance of counsel, and
as independent or stand-alone contentions of error. The petition application asked
Ms. Thrasher to explain why “these grounds have not been raised before,” and she
wrote, “Trial Attorney did not raise these issues – Ineffective assistance of
counsel.” R. at 333. In its entirety, the order by the New Mexico court denying
post-conviction relief stated the following:

Through a series of factual allegations, the petitioner suggests that her
conviction should be reversed for ineffective assistance of counsel.
[Petitioner’s attorney] was faced with considerable evidence against his
client and presented a colorable defense in spite of the evidence. He
challenged the evidence against her and presented a defense. [His]
assistance fell well within that which is required of the effective lawyer.

Id. at 328.

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erred in not finding that the cumulative effect of multiple alleged instances of

prosecutorial misconduct deprived her of a fair trial. Id. at 23–27. The

magistrate judge took note of the State’s concession that Ms. Thrasher had

exhausted these claims in state court, 3 then thoroughly analyzed each of the five

claims and the related sub-issues, ultimately recommending denial of the petition

on the merits and dismissal with prejudice. The district court adopted that

recommendation and also denied Ms. Thrasher a certificate of appealability. 4

3
The magistrate judge unquestionably was correct to find that the
State explicitly conceded that Ms. Thrasher exhausted her claims in state court.
See R. at 458 (Resp’ts’ Mem. in Supp. of Mot. to Dismiss Pet., filed July 19,
2010) (“The . . . state district court, the New Mexico Court of Appeals and New
Mexico Supreme Court review[ed] and den[ied] all claims now presented in the
petition . . . .”). Such a concession constitutes an express waiver. See 28 U.S.C.
§ 2254(b)(3) (“A State shall . . . be deemed to have waived the exhaustion
requirement . . . [if] the State, through counsel, expressly waives the
requirement.”); Gonzales v. McKune, 279 F.3d 922, 926 & n.8 (10th Cir. 2002)
(holding that the State expressly waived the exhaustion requirement when its
answer to the habeas petition conceded that “petitioner has properly exhausted the
issues now presented to this Court”).
4
On the same day that she filed her federal habeas application, March
6, 2009, Ms. Thrasher also filed a second state habeas petition. See R. at 407
(Pet. for Writ of Habeas Corpus, filed Mar. 6, 2009). In that petition, she raised
two claims: (1) ineffective assistance of counsel and (2) “police misconduct.”
With respect to her first claim, Ms. Thrasher listed a number of sub-issues. Id. at
410. With respect to police misconduct, she stated only that “police reports from
[the] day of my arrest have been alter[e]d with signatures, dates, codes and case
numbers.” Id. at 409. When asked in the application to explain why these issues
had not been raised previously, Ms. Thrasher stated, “Because these issues were
just discovered.” Id. at 411. The New Mexico court issued an order on March
10, 2009, that stated as follows in its entirety:

Petitioner alleges ineffective assistance of counsel. Counsel at trial did
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 Ms. Thrasher now seeks a COA from this Court, raising only three claims:

(1) that the search of her residence was unlawful; (2) that the State’s use of the

seized cash as evidence to prove intent to distribute was improper because the

cash had been returned to her before trial; and (3) that the notary on the State’s

petition for an extension of time for trial was invalid. 5 Contrary to the approach

she has previously taken, Ms. Thrasher presents these claims solely as

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an excellent job in the face of facts squarely against the defendant.
Standard of practice was well within that required by trial counsel.
Petitioner was convicted by the facts[,] not because of ineffective
assistance of counsel.

Id. at 415 (Order on Pet. for Writ of Habeas Corpus, filed Mar. 10, 2009).

In his proposed findings, the federal magistrate judge took note of Ms.
Thrasher’s second state habeas petition, see id. at 490 n.2, 502 n.5, apparently
because that petition and the subsequent order were included as exhibits in the
State’s answer to Ms. Thrasher’s federal habeas application, see id. at 120
(Resp’ts’ Answer, filed May 29, 2009); see also id. at 457 (Resp’ts’ Mem. in
Support of Mot. to Dismiss Pet., filed July 19, 2010). The magistrate judge found
that “[t]he only Petition that Petitioner references in her [federal] submissions is
her [state] Petition filed June 24, 2008,” and concluded that “even if Petitioner
intended for both [state] Petitions to be the subject of” her federal habeas claims,
“the result would be the same.” See id. at 490 n.2, 502 n.5. We need not decide
whether it would be proper to consider the state court’s resolution of the second
state habeas petition because the resolution of that petition does not alter our
conclusions here.
5
We consider the other claims, as well as the related sub-issues, that
Ms. Thrasher advanced in her federal habeas application to be abandoned. See
Kokins v. Teleflex, Inc., 621 F.3d 1290, 1302 n.6 (10th Cir. 2010) (“[W]e
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” (quoting Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)) (alteration in original)).

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independent grounds of error. In the state post-conviction proceeding below,

these issues were resolved under the rubric of ineffective assistance of counsel.

See id. at 333, 328. In her federal habeas application, Ms. Thrasher raised these

issues to support both her ineffective assistance of counsel claim and her claim of

cumulative error, which focused on a bevy of instances of alleged prosecutorial

misconduct. Rather than undertake an analysis to determine whether these claims

should be considered waived because they have been repackaged on appeal and

presented to us in a different form than they appeared in the district court, see,

e.g., Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993) (stating

that “there are many ways in which a case may present . . . issues not passed upon

below,” including “a situation where a litigant changes to a new theory on appeal

that falls under the same general category as an argument presented at trial”

(internal quotation marks omitted)), we will construe Ms. Thrasher’s COA

application liberally and analyze the issues in it under the framework of

ineffective assistance of counsel, which appears to be the gravamen of her

grievance. 6

6
The district court (through its adoption of the magistrate judge’s
findings) also analyzed these contentions under the rubric of cumulative error,
specifically relating to instances of alleged prosecutorial misconduct. As noted,
this was not the decisional framework of the New Mexico court, which focused on
ineffective assistance of counsel. To the extent that Ms. Thrasher’s cumulative-
error claim could be deemed to be properly before us for review in her COA
application, we note that we have carefully considered the district court’s analysis
of this claim, in light of the applicable law and the entire record. And we have no
(continued...)

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 STANDARD OF REVIEW

A COA is a jurisdictional prerequisite to our review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)). We will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

satisfy this standard, the applicant must demonstrate “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.” Harris v. Dinwiddie, 642 F.3d 902,

906 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))

(internal quotation marks omitted).

The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

circumscribes our review of federal habeas claims that were adjudicated on the

merits in state-court proceedings. An applicant is not entitled to relief unless she

can demonstrate that the state court’s resolution of her claims 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

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difficulty concluding, for substantially the reasons adopted by the district court,
that no reasonable jurists could debate the correctness of the district court’s
resolution of the cumulative-error claim. Therefore, even if this claim were
properly before us, we would not grant a COA with respect to it.

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unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); accord Phillips v. Workman, 604

F.3d 1202, 1209 (10th Cir. 2010). This “‘highly deferential standard for

evaluating state-court rulings[]’ . . . demands that state-court decisions be given

the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

While we review de novo the district court’s legal analysis of the state-

court decision, Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011), we

incorporate AEDPA’s deferential treatment of that decision into our consideration

of the habeas applicant’s request for a COA, Dockins v. Hines, 374 F.3d 935, 938

(10th Cir. 2004). Thus, to grant a COA, we must find that reasonable jurists

could debate the district court’s determination that the applicant is not entitled to

habeas relief. See id. at 937.

DISCUSSION

Ms. Thrasher faults her attorney for failing to object to three alleged errors:

(1) unlawful search of her residence; (2) the State’s use of the seized and

subsequently returned cash as evidence to prove intent to distribute; and (3) an

invalid notary on the State’s petition for an extension of time for trial. We

analyze each of Ms. Thrasher’s claims in turn, applying the framework of

Strickland v. Washington, 466 U.S. 668 (1984). See Byrd v. Workman, 645 F.3d

1159, 1167 (10th Cir. 2011). To prevail, Ms. Thrasher must show that her

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“counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced the defense.’” Id. (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). These two prongs may be addressed in

any order, and failure to satisfy either is dispositive. Id. at 1168.

Strickland’s “high bar” is difficult to surmount, Harrington v. Richter, 131

S. Ct. 770, 788 (2011) (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485

(2010)) (internal quotation marks omitted), and is made “doubly so” on federal

habeas review, id. (quoting Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009))

(internal quotation marks omitted). When § 2254(d) applies, as it does here, “the

question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. “[B]ecause the Strickland standard is a general

standard, a state court has . . . more latitude to reasonably determine that a

defendant has not satisfied that standard.” Byrd, 645 F.3d at 1168 (quoting

Knowles, 129 S. Ct. at 1420) (internal quotation marks omitted).

I. Unlawful Search

Ms. Thrasher argues that her counsel was deficient for failing to point out

that the police report associated with the controlled cocaine buy specified an

address different from that of her apartment, and for failing to highlight various

discrepancies in the dates on the police reports filed after the search of her

residence. The magistrate judge found, and the district court agreed, that Ms.

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Thrasher’s claim lacked merit because the underlying errors in the police reports

were “fairly minor technical violations” that “did not have a sufficient[ly]

prejudicial effect” on Ms. Thrasher’s defense. See R. at 501, 506–07.

Reasonable jurists could not debate the district court’s resolution under the

second (i.e., prejudice) prong of Strickland. Ms. Thrasher does not dispute that a

controlled buy was conducted at her residence, nor that the affidavit and search

warrant themselves specified the proper address, nor that officers entered her

home and discovered cocaine, cash, and a lack of drug paraphernalia. As the New

Mexico court recognized in the state habeas proceedings, this amounted to

“considerable evidence against” her. Id. at 328. Ms. Thrasher has thus failed to

establish any “reasonable probability” that the outcome of her trial would have

been different if her counsel had drawn attention to the minor police-report

discrepancies. Byrd, 645 F.3d at 1168 (quoting Strickland, 466 U.S. at 694)

(internal quotation marks omitted).

II. Return of Cash

The $2018 in cash seized from Ms. Thrasher’s apartment was returned to

her prior to trial. The receipt given to her attorney stated that the money was “not

pertinent to [the] case.” R. at 76 (Receipt, dated Oct. 19, 2006). Ms. Thrasher

claims that the State did not file a supplemental certificate showing that the cash

was returned. Instead, she argues that the prosecution “used” the cash at trial “as

evidence to prove intent to distribute.” Aplt. Combined Opening Br. & Appl. for

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COA at 7. Ms. Thrasher believes that, if the jury had been aware of the statement

on the receipt and if the State had followed procedure and filed a supplemental

certificate showing that the money was returned to her, the prosecution’s theory

that the cash was derived from drug trafficking would “more than likely” have

been discredited. R. at 21. She faults her attorney for failing to draw attention to

these facts.

The magistrate judge found, and the district court agreed, that Ms.

Thrasher’s “conclusory allegation that the presentation of such evidence would

result in a lesser conviction [i.e., simple possession] does not meet the required

legal standard” and that Ms. Thrasher had said nothing to refute testimony by a

detective at trial that cash was “frequently” returned to defendants. Id. at 504;

see also id. at 499. While neither the magistrate judge nor the district court

mentioned Strickland in resolving this claim, no reasonable jurist could debate the

ultimate conclusion that Ms. Thrasher cannot prevail on it. In particular, her

attorney’s conduct—in failing to point out the statement on the receipt and the

State’s misstep in not filing a supplemental certificate—was neither objectively

unreasonable nor prejudicial.

More specifically, there is no dispute that Ms. Thrasher actually possessed

$2018 in cash at the time that her apartment was searched. The jury heard

testimony from Ms. Thrasher on how she obtained the cash, why she kept it on

hand, why she arranged it in $100 increments, and how she intended to use it.

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See R. at 40 (State v. Thrasher, No. 26,808, filed Nov. 20, 2007). The jury also

heard testimony from detectives that “drug wallets” of the sort found in Ms.

Thrasher’s purse and jacket were frequently used by street-level drug traffickers.

Id. In deciding that Ms. Thrasher had engaged in trafficking, the jury had to (and

did) find that she intended to distribute the cocaine she possessed—a fact that the

presence, amount, and arrangement of the cash tended to establish. That the State

decided to return the cash to her before trial, even with a receipt stating that it

was “not pertinent,” had no bearing on her state of mind at the time of her

offense. In addition, the testimony by the detective that cash was returned to

defendants “frequently” could have strongly contributed to the inference—which

a rational jury could draw—that Ms. Thrasher had gotten her money back.

Therefore, Ms. Thrasher’s attorney could reasonably have concluded that

the statement on the receipt and the lack of a supplemental certificate were not

helpful facts for her defense and, therefore, did not warrant presentation to the

jury. In any event, in the face of the “considerable evidence” against Ms.

Thrasher, as recognized by the New Mexico habeas court, id. at 328, she has not

established a “reasonable probability” that raising these issues would have

engendered a different outcome, Byrd, 645 F.3d at 1168 (quoting Strickland, 466

U.S. at 694) (internal quotation marks omitted). Reasonable jurists could not

debate the outcome that the district court reached regarding this claim.

III. Invalid Notary on Petition for Extension

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 New Mexico law required commencement of Ms. Thrasher’s trial six

months after her July 18, 2005, arraignment, unless the court granted an extension

of time. See R. at 366 (Memo. to Ct., dated Dec. 9, 2005). As the six-month

deadline approached, the New Mexico district attorney petitioned for an extension

“because defense counsel needs more time in preparation for trial.” Id. (emphasis

added). The petition was verified by a notary on December 9, 2005, but the

notary stated in the same document that the notary’s commission had expired on

July 21, 2005—over four months prior. Id. at 364. The court approved an

extension, with trial to commence no later than April 18, 2006. Id. at 368. Ms.

Thrasher’s trial was held in February 2006.

Ms. Thrasher has pointed out, correctly, that it is unlawful for a notary to

exercise the duties of his office when his commission has expired. See N.M. Stat.

Ann. § 14-12A-25 (1978). She claims that her attorney was constitutionally

ineffective for failing to file for dismissal of charges based on the allegedly

invalid petition for extension. The magistrate judge found, and the district court

agreed, that “such a harmless error would not lead to a dismissal.” R. at 505.

That conclusion is unassailable in its own right and for the additional reason that

it was Ms. Thrasher’s counsel who needed the extra time in the first place. The

extension presumably aided Ms. Thrasher’s defense. Consequently, it would have

bordered on the fatuous for Ms. Thrasher’s defense counsel to raise the issue of

the notary’s defective commission. More to the point, we cannot conclude that

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failing to raise the defective-commission issue was objectively unreasonable or

prejudicial. Thus, Ms. Thrasher cannot prevail on this ground. Accordingly, we

conclude that reasonable jurists could not debate the district court’s resolution of

it.

CONCLUSION

For the foregoing reasons, we DENY Ms. Thrasher’s application for a COA

and DISMISS her appeal.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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