F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

AUG 27 2001

PATRICK FISHER
Clerk

EDDIE PEREZ,
Petitioner-Appellant,
v.
TIM LEMASTER, Warden,
New Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

No. 00-2487
(D.C. No. CIV-98-574-M)
(D. N.M.)

Respondents-Appellees.
ORDER AND JUDGMENT

Before HENRY , ANDERSON , 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This order and judgment is not binding precedent, except under the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.

Petitioner seeks review of the denial of his petition for writ of habeas
corpus brought pursuant to 28 U.S.C. 2254. We earlier granted a certificate of
appealability directing appellee to respond to the issues raised. We have
jurisdiction pursuant to 28 U.S.C. 1291, and we affirm.

I
In 1995, petitioner was convicted in state court, following his guilty plea,
to two counts of aggravated burglary. He was sentenced to nine years
incarceration on each count, to run concurrently, with all but 364 days of the
sentence suspended. Five years probation was also ordered, and petitioner was
released on probation in August of 1996. Approximately a month later he was
arrested and charged with receiving stolen property. The state moved to revoke
probation, alleging that petitioner had violated the probation condition that he not
violate any laws or ordinances of the state or municipalities of New Mexico or
any other state or federal laws.
In June of 1997, the trial court conducted a probation revocation hearing,
following which probation was revoked and the original sentence reimposed.
The state then entered a nolle prosequi on the criminal case, stating that because
petitioner had been sentenced based on his probation revocation, it was in the
best interest of justice not to further prosecute the receipt of stolen property
-2-

charge. R., Vol. II, at 170. The New Mexico Court of Appeals affirmed the trial
courts probation revocation order, and the New Mexico Supreme Court denied
certiorari.
Proceeding pro se in federal district court, petitioner alleged that his
conviction was based on an unlawfully obtained guilty plea, the prosecution
failed to disclose favorable evidence because there was never any intent to
prosecute the receipt charge , and he received two sentences for the same crime
(first five years probation, then, following revocation, a nine-year sentence).

The

district court subsequently appointed counsel, whose memorandum brief rephrased

the issues as whether petitioner was denied due process because his guilty plea
was invalidly obtained and because the trial court allowed the state to proceed first
on the probation revocation charge (with a lesser burden of proof) and then to
dismiss the criminal charge once probation was revoked,

and whether his right to

be free from double jeopardy was violated when the trial court imposed a sentence
of incarceration after the revocation hearing.
The magistrate judge recommended denying the petition, determining that
the state record reflected that petitioners guilty plea was voluntary, that the
alleged failure to disclose favorable evidence was conclusory,

that conviction of

a subsequent offense was not necessary under New Mexico law to support

-3-

probation revocation,

and that under state law, the trial judge had discretion to

order service of the original sentence.

In his objections to the magistrate judges report, petitioner alleged, for the
first time, that the state trial judges findings were inadequate to support a
finding by a preponderance of the evidence that petitioner had committed the
offense of receiving stolen property. R., Vol. I, doc. 35, at 2. Petitioner further
contended that the state violated his due process rights by not establishing each
element of the offense of receiving stolen property by a preponderance of the
evidence. The district court adopted the magistrate judges recommendation and
denied the petition.
In his opening brief on appeal, petitioner argues that the state trial and
appellate decisions resulted from unreasonable factual determinations, and that the
state courts unreasonably applied the governing legal principles to the facts.
Appellants Br. at 12.

See 28 U.S.C. 2254(d)(1). Petitioner contends that the

merits of his procedural due process claim are governed by

408 U.S. 471, 487-89 (1972) (parole revocation) and
411 U.S. 778, 782 (1973) (extending

Morrissey v. Brewer ,

Gagnon v. Scarpelli ,

Morrissey s requirements to probation

revocation) and that his substantive due process claims are governed by
Buder , 412 U.S. 430, 431-32 (1973).

-4-

Douglas v.

Specifically, petitioner attacks the factual statement in the trial courts

judgment revoking parole that petitioner had admitted violating the terms and
conditions of his probation as erroneous, claiming he had consistently

denied

violating his probation. Petitioner also attacks the state court of appeals decision
as containing numerous factual inaccuracies. He reiterates his contention that the
state was obligated, as part of the revocation proceeding, to establish the elements
of receiving stolen property and to prove each element by a preponderance of the
evidence.
In response, the state contends that the New Mexico Court of Appeals relied
on the factual statements in petitioners docketing statement (prepared by
petitioners probation revocation attorney) filed in that court, which appellate
counsel, who was different, did not challenge. The state further maintains that the
revocation hearing complied with the requirements of

Morrissey and Gagnon and

that New Mexico law requires only reasonable certainty to establish a probation
violation such as would satisfy the conscience of the court as to the truth of the
violation.
In his reply brief, petitioner for the first time challenges the summary
calendar procedures employed by the New Mexico Court of Appeals as
unreasonable because there is no transcript of proceedings available in cases
assigned to that calendar. He contends that state appellate counsel had no way to
-5-

determine whether the facts in the docketing statement were correct. Appellants
Reply Br. at 4. The lack of access to trial tapes or transcripts allegedly raises
serious due process concerns insofar as it requires the parties to argue and the
court to decide sufficiency-of-the-evidence claims without examination of the
evidence presented. Id. at 5. Although claiming that the efforts of trial and
appellate counsel were hindered, petitioner does not allege ineffectiveness of
either attorney.

II
This case is governed by the provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a claim has been
adjudicated in state court, a petitioner may obtain federal habeas corpus relief only
if 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.

Walker v.

Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000) (quoting 28 U.S.C. 2254(d)(1),
(2)), cert. denied , 121 S.Ct. 2560 (2001)). The writ may be granted only if the
state courts decision reached a conclusion opposite to the Supreme Courts on a
legal question, decided the case differently than the Supreme Court had on
-6-

materially indistinguishable facts, or unreasonably applied governing legal

principles to the facts of petitioners case.

Id. State court factual findings are

presumptively correct, and petitioner bears the burden of rebutting that

presumption by clear and convincing evidence.

Id.

At the outset we outline the issues properly before us and those which are
not. Petitioner did not pursue on appeal his challenges to his guilty plea to the
underlying aggravated robbery or his claim that his sentence following probation
violated double jeopardy principles. These issues, then, are waived.
Pallottino v. City of Rio Rancho

See

, 31 F.3d 1023, 1026 n.2 (10th Cir. 1994) (issues

not briefed on appeal deemed waived). In addition, we decline to consider

petitioners challenge to the summary calendar procedures employed by the
New Mexico Court of Appeals. Petitioners state appellate counsel did not
complain of the procedure, nor was the issue raised either in district court or in
petitioners opening brief. This issue, too, is waived.
Maintenance Mgt. of Colo., Inc.

See Coleman v. B-G

, 108 F.3d 1199, 1205 (10th Cir. 1997) (not

sufficient to mention issue in reply brief; issues not raised in opening brief deemed
waived). What remains is petitioners claim that his federal due process rights
were violated by the revocation of his probation.

-7-

III
The facts surrounding petitioners arrest for receiving stolen property are
taken from his briefs, except where the revocation hearing testimony indicates
otherwise. At about 12:20 a.m. on September 3 or 4, 1996, police were called to a
residential neighborhood to investigate a residents complaint of two males
looking around the residents house and that of a neighbor. The males had
knocked on the residents door asking for someone who did not live there.
Petitioner admitted driving a tan pickup truck to the neighborhood; the pickup was
ultimately found to contain cash, a stolen VCR and stereo (or CD player), and a
photograph of the burglary victims daughter.

Petitioner testified he had spent the day with his niece Gina and her
boyfriend and that at some point late in the evening a friend of Ginas, Albert
Flores, 2 asked petitioner for a ride home. Petitioner borrowed Ginas pickup, and
when he entered the pickup, he claims that Flores, the VCR, and the stereo were
already in the cab.

Flores directed petitioner to drive to a residential neighborhood

The stolen property had ben taken from a residence about four blocks away
sometime between August 29 and September 3, while that resident was out of
town.

In his opening brief petitioner describes Flores, a juvenile, as Ginas

boyfriend. Other references, including petitioners testimony, describe Flores as a
friend who showed up at Ginas sometime during the early hours of September 4.
We note this minor discrepancy because it is one of many equally inconsequential
factual inaccuracies that have plagued this case.

-8-

because he, Flores, was looking for a friend.

Id. According to police Sergeant

Sosa, two neighbors reported petitioner and Flores looking around their houses.
Petitioner testified that he and Flores had knocked at one house and were on their
way to another when the police arrived.

Sergeant Sosa also testified that one

resident (Ms. Oliver) had described the males activities as rummaging around
her neighbors house, meaning going around the bushes and moving garden hoses.
Appellees Br. at 12. Ms. Oliver also reported that petitioner and Flores were
looking around her house until they got to her window and saw her watching them
(while she was on the phone talking to the police).

Id. Petitioner and Flores were

questioned at the scene, and petitioner was arrested on an unrelated warrant.

Appellants Br. at 8. Petitioner was subsequently bound over for trial on the
criminal charge of receiving stolen property. That trial was scheduled to follow
the revocation hearing, at which probation was revoked.

IV
In attempting to meet the AEDPA requirements, petitioner claims the
decision of the New Mexico Court of Appeals was based on numerous factual
inaccuracies and that the docketing statement filed by trial counsel differed from

-9-

the revocation hearing tapes.

Petitioner contends that the docketing statement

stated that [f]acts were developed at the revocation hearing showing that
Mr. Flores admitted he stole the property in the pickup and reported that
[petitioner] did not know the property was stolen and was not involved in the
theft, when in reality, Flores did not testify at the revocation hearing, and
[no] witnesses testified about his admissions or statements. Appellants Reply
Br. at 4. Our review of the state court docketing statement reflects that evidence
surrounding the Flores admission was explored at petitioners preliminary hearing,
not the revocation proceeding.

See R., Vol. II, at 159-60. Moreover, contrary to

petitioners claim, his own attorney stated at the revocation hearing that Flores had
admitted to the charges which petitioner was alleged to have committed. These
minor discrepancies do not rise to the level of an unreasonable determination
of the facts in light of the evidence presented in the State Court proceeding.
28 U.S.C. 2254(d)(2).
Petitioner does point to the trial judges statement in the revocation
judgment that petitioner admitted he has violated the terms and conditions of the
probation heretofore entered, R., Vol. II, at 145, claiming, as he did in the
For example, Gina is listed in the docketing statement as petitioners sister;
she is in fact his niece. Flores supposedly asked for a ride to find a friend,
whereas the docketing statement lists this person as Flores cousin. The
docketing statement also listed Sergeant Sosa as the arresting officer when in fact
he was not.

-10-

New Mexico Court of Appeals, that he has vigorously

denied having any

connection to the stolen property. However, the state court of appeals did not rely
on this alleged admission in concluding that petitioner had failed to persuade that
court that the evidence was insufficient to support a revocation of his probation
on the grounds that he committed the crime of receiving stolen property.
R., Vol. I, doc. 1, ex. 2.
Moreover, we note that the statement that petitioner had admitted to
violating probation does not refer to any particular condition, such as violating
state or federal laws. We also note that petitioner did admit to violating the
probation condition forbidding the consumption of alcohol, knowing he was not
allowed to do so.

See R., Vol. II, at 117, 11 (You shall not use or consume

alcoholic beverages . . . .). At the revocation hearing he testified that on the day
of his arrest he drank a lot of beer. Thus we cannot agree that the statement
regarding an admitted probation violation is even factually incorrect.

V
The crux of petitioners legal argument, then, is that the state was obligated
to, but did not, prove the elements of the criminal charge of receiving stolen
property by a preponderance of the evidence, an issue first raised in his objections
to the magistrates report and recommendation.
-11-

In support of this claim, petitioner cites New Mexico cases describing the
burden of proof needed in a criminal context to establish receipt of stolen
property. See , e.g. , State v. Sizemore , 858 P.2d 420, 423 (N.M. Ct. App. 1993).
He further argued, as he does on appeal, for the general proposition that probation
or parole revocation based on commission of a crime requires proof by a
preponderance of the evidence of each element of that crime.
The cases cited by petitioner are simply inapposite.
Stephenson , 928 F.2d 728 (6th Cir. 1991) and

United States v.

United States v. Myers ,

896 F. Supp. 1029 (D. Or. 1995) involved revocation of supervised release under
federal law, which is governed by the requirements of 18 U.S.C. 3583(e)(3), and
requires finding a supervised release violation by a preponderance of the evidence.
United States v. Flynn , 844 F. Supp. 856, 860 (D. N.H. 1994) involved numerous
federal probation violations in which the court simply noted that its findings were
made on a preponderance of the evidence. Finally,

Bumgarner v. Middleton ,

No. 94-7003 1995 WL 275718 at *2 (Okla.) (May 10, 1995) recites that the
question at an Oklahoma revocation hearing is whether a preponderance of the
evidence established that petitioner had committed a crime.

Bumgarner , of course,

is an unpublished decision, and therefore not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. 10th Cir.
R. 36.3. We have, however, formally recognized Oklahomas preponderance of
-12-

the evidence standard.

See United States v. Cantley , 130 F.3d 1371, 1376

(10th Cir. 1997). Petitioner cites to no New Mexico authority for his
preponderance of the evidence theory, nor have we found any.
Petitioners citation to

Douglas , 412 U.S. 430 (1973), is likewise

unpersuasive. In Douglas , petitioners probation was revoked because he had

failed to report the issuance of a traffic citation, allegedly in violation of a
probation requirement to report all arrests without delay. However, under
appropriate state law, petitioner was not arrested because of the traffic citation.
Hence the Courts conclusion, that the state courts determination that petitioner
had violated probation by failing to report all arrests . . . without delay was so
totally devoid of evidentiary support as to be invalid under the Due Process Clause
of the Fourteenth Amendment,

id. at 432, is not applicable to petitioners

situation. Here, petitioner was arrested and charged with receiving stolen
property. That he was ultimately not tried on that charge is not determinative of
the probation revocation issue.

See Maes v. State , 501 P.2d 695, 696 (N.M. Ct.

App. 1972) (conviction of subsequent offense not prerequisite for probation

revocation.) In addition, a prosecutor may press for revocation either before or
after a probationers trial on related criminal charges.
927, 930 (N.M. Ct. App. 1985).

-13-

State v. Chavez , 694 P.2d

Under New Mexico law, a probation revocation proceeding is analogous to

an administrative hearing, not part of a criminal prosecution.

See State v.

DeBorde , 915 P.2d 906, 908 (N.M. Ct. App. 1996). The hearing is to determine
whether, during the probationary or parole period, the defendant has conformed to
or breached the course of conduct outlined in the probation or parole order.
State v. Foster , 965 P.2d 949, 950 (N.M. Ct. App. 1998) (quoting

State v. Sanchez ,

612 P.2d 1332, 1334 (N.M. Ct. App. 1980)). The degree of proof required to
establish a probation violation is
such reasonable certainty as to satisfy the conscience of the
court of the truth of the violation. It does not have to be
established beyond a reasonable doubt. In such a hearing if the
evidence inclines a reasonable and impartial mind to the belief
that the defendant had violated the terms of his probation, it is
sufficient. A hearing of this character is not a trial on a
criminal charge, but is a hearing to judicially determine whether
the conduct of the defendant during the probation period has
conformed to the course outlined in the order of probation.
State v. Brusenhan , 438 P.2d 174, 176 (N.M. Ct. App. 1968) (further citation
omitted).
Moreover, probation revocation proceedings are not directed at punishing
the original criminal activity, but rather to reassess whether the petitioner may
still be considered a good risk.

In re Lucio F.T. , 888 P.2d 958, 959 (N.M. Ct.

App. 1994); see also State v. Martinez , 775 P.2d 1321, 1324 (N.M. Ct. App. 1989)
(courts disposition function is predictive and discretionary.). Here, the trial
-14-

court found that the evidence, although by the thinnest of margins, was
nonetheless reasonably credible evidence of a violation of the terms and conditions
of petitioners probation. The court further stated that its conscience was
satisfied.

Upon review of the state court record, we are not persuaded that the

probation revocation decision was based on an unreasonable factual determination

based on evidence presented in the state court proceedings, nor was the state
courts decision contrary to or an unreasonable application of clearly established
federal law. See Elliott v. Williams , 248 F.3d 1205, 1207 (10th Cir. 2001).
Accordingly, the judgment of the United States District Court for the
District of New Mexico is AFFIRMED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

-15-