Robert L. Chaney, Petitioner-appellant, v. O.m. Mccotter, Secretariat, State of New Mexico Correctionsdept.; Stephen Rausch, Officer, State of New Mexicocorrections Dept.; Hal Stratton, Attorney General of Thestate of New Mexico, Respondents-appellees, 5 F.3d 545 (10th Cir. 1993)

Petitioner also contends he was not permitted an opportunity to expand the record. Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts permits the district court to expand the record "by the inclusion of additional materials." Rule 7(a). "The purpose is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings...." Rule 7 advisory committee's note. Here, after a de novo review, the federal district court dismissed the habeas petition based on the pleadings, so Rule 7 was not implicated. Accordingly, the federal district court did not abuse its discretion by not expanding the record. See Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.) (expansion of record not mandatory, and is left to district court's discretion), cert. denied, 488 U.S. 928 (1988).

Petitioner next complains the federal district court "considered improper evidence, ignored material evidence and otherwise tried the facts in an incomplete and unfair manner." Aplt. Br. at 5. Petitioner incorporates into his appellate argument his objections to the magistrate judge's proposed findings and recommended disposition. We have also reviewed petitioner's motion to alter or amend and to make additional findings. The documents identify only two specific evidentiary errors alleged by petitioner: that the son's passport application and the son's affliction with malaria while with petitioner in Nigeria should have not been revealed to the state trial jury. The district court substituted its own findings for those of the magistrate judge on those two matters. Our review of the record convinces us the district judge did not err, as we discuss below. Petitioner has not specified any other facts that were misconstrued by the district court, except to argue that a hearing should have been granted. That issue is addressed above. Because petitioner's remaining contentions are vague and unsupported by allegations of fact, they do not state a claim of constitutional violation. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (petitioner, even if pro se, must allege sufficient facts about material events); Dunn v. White, 880 F.2d 1188, 1198 (10th Cir. 1989) (specific allegations required to state a claim of constitutional violation), cert. denied, 493 U.S. 1059 (1990).

Petitioner also claims the federal district court erroneously joined his two habeas petitions. The district court file reflects three habeas petitions: (1) petitioner's original pro se typewritten petition, (2) petitioner's subsequent pro se petition on forms provided by the court, and (3) the amended petition filed by counsel for petitioner. Even though petitioner did not specify which two of the three petitions should not have been joined, the subject matter of each petition is petitioner's May 18, 1987, conviction for custodial interference. Consequently, no error occurred.

We next address petitioner's claims that the facts were not correctly presented to, or reviewed by, the federal district court. Although petitioner does not inform us of which facts were not fairly treated, we assume he pursues here his claims of error in the introduction into evidence of his son's passport application and the fact that his son contracted malaria while with petitioner in Nigeria. We have reviewed the state trial court transcripts, audiotapes, and pleadings, and have found no additional debatable evidentiary rulings.

We review de novo the mixed question of fact and law of whether introduction of the testimony constitutes prejudice of constitutional dimension. Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir.), cert. denied, 490 U.S. 1112 (1989). "The New Mexico state courts' evidentiary and procedural rulings may not be questioned unless [petitioner] demonstrates that the remark [§ were] so prejudicial in the context of the proceedings as a whole that he was deprived of the fundamental fairness essential to the concept of due process." Id. Here, petitioner argues the evidence may have caused the jury to feel less congenial toward him. But neither the passport application nor the reference to the child's malaria addressed any element of the charges against petitioner. See N.M. Stat. Ann. 30-4-4 (Michie Supp.1984) (defining offense of custodial interference). The evidence was not pertinent to a disputed issue in the case. After reviewing the trial record, including the circumstances under which the disputed information was revealed to the jury, we conclude there is no "reasonable likelihood that the ... testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). Petitioner did not suffer prejudice of constitutional dimension. Consequently, he is not entitled to habeas relief.

Petitioner's argument that the federal district court's errors were cumulative, thereby prejudicing him, must fail. We determine the district court committed no error. Therefore, there was no cumulative error.

Petitioner next complains he was denied his constitutional right to the effective assistance of counsel because of various acts and omissions by counsel appointed to represent him in the federal district court habeas proceedings. We conclude petitioner cannot bring a claim of ineffective assistance of his habeas counsel.

The Sixth Amendment right to counsel does not apply to civil proceedings such as a habeas petition in which a prisoner is collaterally attacking his conviction. Coleman v. Thompson, 111 S. Ct. 2546, 2566 (1991); see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no constitutional right to counsel in collateral attack on conviction); Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988) (habeas relief not available based on ineffective assistance of attorney appointed for state court collateral post-conviction proceedings because no constitutional right to counsel attaches to such proceedings). "In the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation...." Coleman, 111 S. Ct. at 2567. Accordingly, because a constitutional right to counsel does not attach to 2254 proceedings, petitioner is not entitled to habeas relief on this ground.

Petitioner also maintains he was denied his constitutional right to the effective assistance of counsel in the state trial court proceedings. To establish his counsel's representation was constitutionally ineffective, petitioner must show both (1) counsel's representation fell below an objective reasonableness standard, and (2) but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). " [T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland v. Washington, 466 U.S. 668, 689 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The burden of establishing purported deficiencies of counsel must be carried by the petitioner. United States v. Miller, 907 F.2d 994, 1002 (10th Cir. 1990). " [O]n an ineffective assistance of counsel claim, under Strickland, we apply a plenary standard of review except for historical facts." Capps v. Sullivan, 921 F.2d 260, 263 (10th Cir. 1990) (citing Miller, 907 F.2d at 996-97).

Petitioner claims his state trial counsel (1) attempted to sabotage petitioner's state appeal; (2) failed to prepare adequately for trial and performed poorly at trial, failing to present petitioner's case to his satisfaction; (3) was not adequately versed in the law; (4) obstructed his access to private counsel; (5) failed to object to the introduction of evidence; and (6) refused to represent petitioner at the sentencing hearing. Petition for certificate of probable cause, at 2-3.

The allegation of an attempt to sabotage petitioner's state appeal is not supported by the record. Petitioner received an appeal of his conviction and sentence to the state court of appeals.

In evaluating petitioner's claim that his state court trial attorney failed to investigate and present evidence and witnesses urged by petitioner, we rely on materials presented by petitioner's appellate counsel to the state appellate court alleging many instances of misconduct and dishonesty on the part of several participants in the underlying divorce and custody case, including the judge, the attorneys, the expert witnesses, and the state's governor.³  In our view, state trial counsel's decision not to present such evidence was "sound trial strategy." Strickland, 466 U.S. at 689.

Neither the record nor petitioner's appellate arguments suggests a basis for his assertion that his state trial attorney was not adequately versed in the law; therefore, we cannot address this claim. For the same reason, we cannot address his claim that his state trial attorney obstructed petitioner's access to private counsel. We have already rejected petitioner's claim that constitutional error was committed relative to the passport and malaria issues. Because petitioner does not claim constitutional violations relating to his sentencing hearing, we perceive no constitutionally ineffective assistance of counsel at the sentencing hearing. Accordingly, petitioner's claim of ineffective assistance of his state trial counsel cannot provide a basis for habeas relief.

Finally, petitioner alleges the district court erred in refusing to order the state court to provide him a forum. Because the district court did not have authority to do so, we perceive no error. See Olson v. Hart, 965 F.2d at 942 ("Federal courts have no authority to issue a writ of mandamus to a state judge.").

Petitioner's application for a certificate of probable cause is GRANTED.

The judgment of the United States District Court for the District of New Mexico is AFFIRMED. The mandate shall issue forthwith.