F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

SEP 4 2002

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

RICHARD CHAPMAN,
Petitioner - Appellant,
v.

No. 01-2240

TIM LeMASTER, Warden, New

Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-98-161-BB/KBM)
Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico, for
Appellant.
Martha Anne Kelly, Assistant Attorney General (Patricia A. Madrid, New Mexico
Attorney General, with her on the brief), Albuquerque, New Mexico, for
Appellees.
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HARTZ, Circuit Judge.
MURPHY, Circuit Judge.

I. INTRODUCTION
Petitioner-appellant Richard Chapman appeals an order of the United States
District Court for the District of New Mexico dismissing his 28 U.S.C. 2254
habeas corpus petition with prejudice. After a jury trial in 1979, Chapman was
convicted of felony murder and robbery and sentenced to life imprisonment. In
his petition, Chapman argues that (1) the trial courts failure to instruct the jury
about the dangerousness of the underlying felony pursuant to State v. Harrison,
564 P.2d 1321 (N.M. 1977), violated his due process rights; (2) the trial courts
failure to instruct the jury about the requisite mens rea for felony murder as
required by State v. Ortega, 817 P.2d 1196 (N.M. 1991), violated his due process
rights; and (3) he received ineffective assistance of pretrial counsel and trial
counsel. The district court granted a certificate of appealability (COA) only on
the Ortega claim. Exercising jurisdiction under 28 U.S.C. 2253, this court
affirms the district courts decision to deny the writ on the Ortega claims, denies
a COA on Chapmans Harrison and ineffective assistance claims and dismisses
those portions of the appeal.
II. BACKGROUND
A. Factual Background
The relevant facts surrounding Chapmans crimes are undisputed. In 1978,
the decomposed body of Terry Sanders was found in a ravine near Farmington,
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New Mexico. Chapman, Jim Humiston, Larry Smith, and Smiths wife Patricia
were arrested in connection with Sanders murder. All except Chapman pleaded
guilty to murder or a lesser offense. At trial, Humiston testified as a prosecution
witness. He testified that the night before Sanders murder, Chapman was present
when Humiston and Smith discussed stealing Sanders van and money. When
Smith suggested killing Sanders, Chapman rejected the idea. They planned to
take Sanders out to a deserted area on the pretense of rustling calves. On direct
and redirect examination, Humiston testified that they planned to use some degree
of force or violence to rob Sanders because Sanders was a large man. On cross
and recross examination, Humiston disclaimed any plan of force or violence,
testifying instead that the three men planned to lure Sanders away from his van by
proposing to steal a calf, circle back to the van, and steal the van when Sanders
was away.
When the four men stopped to ostensibly rustle calves, Chapman got out of
Sanders van and went to a road to act as a lookout. Humiston and Smith
remained in the van with Sanders. Humiston then incapacitated Sanders by
striking him on the head with a pipe concealed in his boot and pushed him out of
the van. Upon hearing the commotion, Chapman returned to the van and
expressed his dismay at the turn of events. Chapman had no idea that Humiston
would use a pipe to strike Sanders.
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Humiston then tied Sanders hands behind his back while Chapman
returned to his lookout position. Humiston was returning to Sanders van when
he heard a gunshot; Smith had shot Sanders in the head. According to Humiston,
neither he nor Chapman knew that Smith would kill Sanders. Chapman was upset
by the shooting. Afterwards, the three men and Smiths wife drove the stolen van
to Colorado.
B. Procedural Background
On September 25, 1978, a grand jury in San Juan County, New Mexico,
district court indicted petitioner Chapman of first degree murder, felony murder,
and armed robbery. Chapman had made a pretrial statement to police in which he
stated I did not kill Terry Sanders and ahI was with the people involved under
fear for my own life. On the basis that he received ineffective assistance of
pretrial counsel, Chapman moved to suppress that statement, which the trial court
denied. A jury found Chapman guilty of robbery and felony murder and he was
sentenced to life imprisonment.
The New Mexico Supreme Court affirmed Chapmans convictions on direct
appeal. Relying on State v. Harrison, Chapman argued that the trial courts
failure to instruct the jury on the dangerousness of the underlying felony violated
state law. 564 P.2d at 1324. The New Mexico Supreme Court rejected this
argument.
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Chapman sought collateral review by the New Mexico Supreme Court,

claiming ineffective assistance of pretrial counsel with respect to Chapmans
pretrial statement and trial counsel for failing to impeach a prosecution witness.
The court denied the petition but remanded the matter to state district court,
whereupon the petition was denied on the merits after an evidentiary hearing.
The New Mexico Supreme Court subsequently denied certiorari review.
Chapman then filed a 2254 petition in federal district court in New
Mexico. As amended, the petition raised the ineffective assistance claims and a
federal due process claim based on Harrison. During briefing in federal district
court, the New Mexico Supreme Court decided State v. Ortega, which held that an
intent to kill is an essential element of New Mexicos felony murder statute. 817
P.2d at 1204-05. Chapman raised a due process claim based on Ortega in his
reply brief. The district court dismissed his petition with prejudice.
On appeal, this court noted that Chapman had failed to exhaust his due
process claim based on Ortega. See Chapman v. Kerby, No. 93-2138, 1994 WL
386006, at **1 (10th Cir. July 22, 1994) (per curiam). Pursuant to Rose v. Lundy,
455 U.S. 509, 510 (1982), we ordered the district court to dismiss the petition
without prejudice. See id.
Chapman then returned to state court to exhaust his Ortega due process
claim by filing a pro se habeas petition in San Juan County district court. After
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oral argument, the state district court denied the petition with prejudice. The
court noted that Chapman never raised the Ortega claim during trial, on direct
appeal, or in his first state habeas petition. It concluded that Chapmans petition
was a successive writ and as such should be dismissed. The court nevertheless
addressed Chapmans arguments by stating that Ortega establishes a new
element which the State must prove in cases of felony murder . . . [but] should not
be applied retroactively to Petitioners case and conviction. The New Mexico
Supreme Court initially granted a writ of certiorari but quashed the writ after
briefing by the parties.
In 1998, Chapman filed another 2254 petition in federal district court
raising the Ortega due process claim, the Harrison due process claim, and the
claims of ineffective assistance of pretrial counsel and trial counsel. The federal
district court adopted the magistrate judges proposed findings and
recommendation to dismiss the petition with prejudice. New Mexico does not
argue on appeal that any of Chapmans claims are procedurally barred or
unexhausted.
III. STANDARD OF REVIEW
Because Chapman filed his 2254 petition after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), its
provisions govern Chapmans appeal. See Johnson v. Gibson, 254 F.3d 1155,
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1159 (10th Cir. 2001). Chapman argues, however, that AEDPAs standards of
review should not apply in this case. Chapman claims when he chose to return to
state court to exhaust his Ortega claim, he relied on the prevailing standard of
review at the time, which provided for de novo review by federal habeas courts.
See generally Wright v. West, 505 U.S. 277, 301-03 (1992) (OConnor, J.,
concurring in the judgment). Chapman contends that he had no reason to believe
that, once he returned to federal court, his claims would be reviewed under
AEDPAs more deferential standards of review. See 28 U.S.C. 2254(d).
Applying AEDPA standards to his claims, Chapman asserts, would be
impermissibly retroactive under Landgraf v. USI Film Products, 511 U.S. 244
(1994).
This court, however, has previously rejected similar retroactivity
arguments. See Trice v. Ward, 196 F.3d 1151, 1158 (10th Cir. 1999); Moore v.
Gibson, 195 F.3d 1152, 1163 (10th Cir. 1999). Although neither Trice nor Moore
involved a dismissal of a mixed petition and a subsequent return to federal habeas
court after exhaustion in state courts, the reasoning in those cases is fully
applicable here. We have consistently held that AEDPA applies to petitions filed
after AEDPAs effective date, regardless of when the state proceedings occurred.
See Trice, 196 F.3d at 1158; Moore, 195 F.3d at 1163. We thus apply the AEDPA
standards of review.
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Chapmans federal due process claim premised on Harrison was not raised
before the state courts and thus not addressed on the merits. 1 This court thus
exercise[s] our independent judgment in deciding the claim. Battenfield v.
Gibson, 236 F.3d 1215, 1220 (10th Cir. 2001). In doing so, we review the
federal district courts conclusions of law de novo and its findings of fact, if any,
for clear error. Id.
Chapmans Ortega and ineffective assistance claims, however, were
adjudicated on the merits by state courts. For those claims, Chapman is entitled
to federal habeas corpus relief only if he can establish that a claim adjudicated by
the state courts resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States. Trice, 196 F.3d at 1159 (quoting 28
U.S.C. 2254(d)(1)). A state court determination is contrary to clearly
established federal law when the state court applies a rule which contradicts
governing Supreme Court precedents or resolves a case with materially
indistinguishable facts differently than the Supreme Court would. See Thomas v.

The magistrate judge below correctly noted that Chapman raised this claim
on direct appeal as a state law claim. Although Chapman did not raise a federal
due process claim in the state courts based on Harrison and thus did not exhaust
this claim, we nevertheless address the claim on the merits. See 28 U.S.C.
2254(b)(2) (authorizing court to deny a petition notwithstanding petitioners
failure to exhaust).
1

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Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000) (discussing Williams v. Taylor, 529
U.S. 362, 405-06 (2000)). A state courts determination is an unreasonable
application of Supreme Court precedent if it unreasonably applies the precedent to
the facts of the state prisoners case. See id. AEDPA also authorizes this court to
grant habeas relief if the state courts adjudication resulted in a decision that
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)(2). This court
presumes that the state courts factual determinations are correct, although the
prisoner may rebut that presumption with clear and convincing evidence. See id.
2254(e)(1).
IV. HARRISON DUE PROCESS CLAIM
Chapmans first claim is that the trial courts failure to instruct the jury on
the inherently or foreseeably dangerous element of felony murder, as required by
the New Mexico Supreme Court in Harrison, violated due process. In Harrison,
which was binding state precedent at the time of Chapmans trial, the defendant
was convicted of false imprisonment and felony murder. See 564 P.2d at 1321.
When Harrison was decided in 1977, New Mexico defined murder as the
unlawful killing of one human being by another with malice aforethought, either
express or implied, by any of the means with which death may be caused. Id. at
1323. First degree murder included all murder perpetrated . . . in the
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commission of or attempt to commit any felony. Id. 2 The court noted the
tension between the felony murder statutes conclusive presumption that a
homicide committed during the course of any felony is first-degree murder and
the requirement that first-degree murder be committed with malice aforethought
or by a greatly dangerous act without regard to human life. Id. at 1324. The
court concluded that [t]o presume conclusively that one who commits any felony
has the requisite mens rea to commit first-degree murder is a legal fiction we no
longer can support. Id. In cases when the underlying felony is less than first
degree, the New Mexico Supreme Court continued, only those known to have a
high probability of death may be utilized for a conviction of first-degree
murder. . . . [T]he mens rea of one who is committing a felony which is
inherently or foreseeably dangerous to human life is sufficient to justify
convicting a defendant of felony murder. Id. In applying this additional
requirement, both the nature of the felony and the circumstances surrounding its
commission may be considered. Id. The New Mexico Supreme Court ultimately

These definitions of murder and felony murder governed at the time

Chapman committed his offenses. Although New Mexico has since amended its
first degree murder statute, see N.M. Stat. Ann. 30-2-1(A) (Michie 1978), the
holding in Harrison remains applicable. See State v. Ortega, 817 P.2d 1196, 1205
(N.M. 1991) (The holding in Harrison was that felony murder must be
predicated on a first degree or other inherently dangerous felony. We believe this
interpretation of the statute remains appropriate.).
2

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concluded that whether a felony was inherently or foreseeably dangerous to

human life was a question for the jury. See id.
In this case, Chapman was convicted of robbery, a third-degree felony, and
thus Harrison applies to the felony murder conviction. N.M. Stat. Ann. 30-16-2
(Michie 1978). New Mexico does not dispute that the trial court failed to
expressly instruct the jury that it must find the underlying felony of robbery had
a high probability of death or was inherently or foreseeably dangerous to
human life. 3 Chapman contends that the failure to instruct the jury on an
3

The trial court instructed the jury on the felony murder count as follows:

For you to find the defendant guilty of felony murder, which is

first degree murder, as charged in Count I, the State must prove to
your satisfaction beyond a reasonable doubt each of the following
elements of the crime:
1. The defendant committed or attempted to commit the crime
of robbery or armed robbery;
2. During the commission of or the attempt to commit robbery
or armed robbery, the defendant caused the death of Terry Lynn
Sanders;
3. This happened in New Mexico on or about the 24th day of
April, 1978.
The jury was also instructed that Chapman need not have committed the robbery
himself to be convicted of felony murder, but could be convicted if he helped,
encouraged or caused the robbery to be committed. The trial court in turn
instructed the jury on the elements of robbery as follows:
For you to find the defendant guilty of robbery as charged in
Count II, the State must prove to your satisfaction beyond a
reasonable doubt each of the following elements of the crime:
(continued...)
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essential element of felony murder violated his due process rights. According to
Chapman, [t]here is a reasonable likelihood the jury interpreted its instructions
to allow Chapman to be convicted of felony murder without a finding that he
committed an offense that was inherently dangerous or under circumstances or in
a manner dangerous to human life.
On direct appeal, the New Mexico Supreme Court rejected Chapmans
argument. Its entire discussion of Chapmans Harrison claim explained:
The element of inherent danger required by Harrison was
included in the instruction concerning robbery, the underlying felony.
The instruction given on this charge required the jury to find that
defendant had threatened force or violence before he could be
convicted of robbery in any degree. This instruction on the
underlying felony satisfies the inherent dangerous element of
felony murder jury instructions. Each instruction need not contain
within its limits all the elements to be considered, so long as the
instructions as a whole do contain them. State v. McFerren, 80 N.M.
622, 59 P.2d 148 (Ct. App. 1969), cert. denied, 80 N.M. 731, 460
P.2d 26 (1969).
Chapman argues, however, that simply because the jury was instructed that
threatened force or violence is an essential element of robbery does not
necessarily mean the jury was instructed that Chapmans robbery was inherently
(...continued)
1. The defendant took a 1972 Chevrolet van from Terry Lynn
Sanders or from his immediate control intending to permanently
deprive Terry Lynn Sanders of the van;
2. The defendant took the van by threatened force or violence;
3. This happened in New Mexico on or about the 24th day of
April, 1978.

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dangerous. He contends that a robbery may be committed under circumstances

which are not dangerous to the victim.
[T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970); see
also Rael v. Sullivan, 918 F.2d 874, 875 (10th Cir. 1990) (explaining that
complete failure to instruct [the jury] on an essential element of an offense
violates the right to due process). On habeas review, however, the New Mexico
courts interpretation of the state felony murder statute is a matter of state law
binding on this court. See Rael, 918 F.2d at 876 (citing Mullaney v. Wilbur, 421
U.S. 684, 691 (1975)). In this case, the New Mexico Supreme Court determined
on direct review that the inherent dangerousness element in Harrison is satisfied
by proof of threatened force or violence. This is a determination of state law over
which this court has no power to question. See id. That the Harrison claim was
presented to the New Mexico Supreme Court as a matter of state law, and not
federal due process, strengthens our conclusion that the court made a state law
determination. Accordingly, the jury was properly instructed as a matter of state
law on all the elements defined in Harrison, and the district court properly denied
Chapmans federal due process claim.

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V. ORTEGA DUE PROCESS CLAIM

Chapman next asserts that the trial courts failure to instruct the jury on the
requisite mens rea element for felony murder violated federal due process. In
State v. Ortega, which was decided nearly twelve years after Chapmans
convictions became final, the New Mexico Supreme Court held that the felony
murder statute has a mens rea element. See 817 P.2d at 1204-05. The
prosecution may show intent by proof that the defendant intended to kill or knew
that his acts would create a strong probability of death or great bodily harm.
See id. at 1205 (quotation omitted). More precisely, Ortega held that the mens
rea supporting a second-degree murder may support a conviction for first-degree
murder when [the murder] occurs in circumstances that the legislature has
determined are so serious as to merit increased punishment. Id.; see also State v.
Campos, 921 P.2d 1266, 1272 (N.M. 1996). The parties do not dispute that the
trial court failed to instruct the jury about an intent element in the felony murder
charge.
A. Whether Ortega Reflected New Mexico Law at Time of Conviction
Chapman argues that Ortega stated New Mexico law existing at the time
his conviction became final. He cites cases for the proposition that a judicial
decision interpreting a statute generally applies from the time of the statutes
effective date. The cases cited by Chapman do not support his contention.
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Contrary to Chapmans argument, the New Mexico Supreme Court has

acknowledged that there is no definitive rule about how new decisions apply to
earlier convictions. See State v. Mascareas, 4 P.3d 1221, 1228 n.5 (N.M. 2000);
State v. Ulibarri, 994 P.2d 1164, 1171 (N.M. Ct. App. 1999). That determination
is on a case-by-case basis according to the analysis outlined by the United States
Supreme Court in Linkletter v. Walker, 381 U.S. 618, 636 (1965). See State v.
Santillanes, 849 P.2d 358, 367 (N.M. 1993); see also Mascareas, 4 P.3d at 1228
n.5 (acknowledging that United States Supreme Court has abandoned the
Linkletter test but nevertheless reaffirming the validity of the approach in New
Mexico). This approach has been applied in cases requiring statutory
interpretation. See Santillanes, 849 P.2d at 366-67.
New Mexico decisions indicate that Ortega announced a new rule of law.
In State v. Harrison, a felony murder decision binding at the time of Chapmans
trial and discussed in Section IV, supra, the New Mexico Supreme Court made no
reference to a general intent to kill requirement. See Harrison, 564 P.2d at 1324
(Our felony murder statute conclusively presumes that any homicide occurring
during any felony is first-degree murder. . . . In felony murder cases where the
felony is a first-degree felony such a presumption is appropriate.); see also State
v. Pierce, 788 P.2d 352, 357 (N.M. 1990) ([T]he requisite malice aforethought
can be inferred from the commission or attempted commission of the felony . . . .
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[F]elony murder simply contains no mens rea requirement. (quotation omitted)).

In Ortega itself, the New Mexico Supreme Court held that proof that a killing
occurred during the commission or attempted commission of a felony will no
longer suffice to establish murder in the first degree. 817 P.2d at 1205
(emphasis added). The court also acknowledged that its earlier decisions
contained statements about felony murder which were ill-advised and at
variance with the holding and that it would be necessary to modify them to
bring them into conformity with [Ortega]. Id. at 1203, 1205.
Since the Ortega decision, the New Mexico Supreme Court has further
indicated that Ortega announced a new rule. See State v. Duffy, 967 P.2d 807,
814 (N.M. 1998) (New Mexico is unique in establishing a mens rea requirement
for a felony-murder conviction. We established this requirement in State v.
Ortega. (emphasis added)); State v. Lopez, 920 P.2d 1017, 1020 (N.M. 1996)
(In 1991 this Court, in State v. Ortega, imposed a mens rea requirement for
felony murder. (citation omitted) (emphases added)); id. at 1020 n.1 (chiding the
parties and trial judge for failing to incorporate Ortega in the jury instructions,
and noting that [a]ttorneys and judges have an obligation to keep abreast of

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current changes in the law (emphasis added)); State v. Hernandez, 846 P.2d 312,
332 (N.M. 1993) (Ortega . . . changed the law regarding felony murder.). 4
B. Retroactive Application of Ortega
Chapman next argues that even if Ortega did not state the law as it existed
at the time of his conviction, this court should apply Ortega retroactively to his
conviction. When a states highest criminal court has resolved the question of
retroactivity, that determination is a matter of state law and a federal habeas court
has no power to grant relief. See Jackson v. Shanks, 143 F.3d 1313, 1324 (10th
Cir. 1998); see also Linkletter, 381 U.S. at 629 (explaining that the federal

These reasons explain why this case is distinguishable from the two cases
Chapman relies on in which the federal habeas court certified the question
whether a state decision stated the law at the time the petitioners conviction
became final. See Fiore v. White, 528 U.S. 23 (1999); Burleson v. Saffle, 278
F.3d 1136 (10th Cir. 2002). In each of those cases, the habeas petitioner sought
to apply a post-conviction decision by the states highest criminal court to his
case. See Fiore, 528 U.S. at 25-26; Burleson, 278 F.3d at 1138-39. In Fiore, the
case the petitioner sought to apply marked the first time the Pennsylvania
Supreme Court had interpreted the statute at issue; the lower courts had
previously been divided in their interpretations. See Fiore, 528 U.S. at 28.
Similarly, in Burleson, the Oklahoma Court of Criminal Appeals had not
previously addressed the statute at issue in that case. See Burleson, 278 F.3d at
1143-44. In contrast, here the New Mexico Supreme Court had previously
interpreted the states felony murder statute and did not find a general mens rea
requirement. See Harrison, 564 P.2d at 1324; State v. Pierce, 788 P.2d 352, 357
(N.M. 1990). There is also no indication in either Fiore or Burleson whether
subsequent state cases suggested the rules implicated in those cases were a new
rule of law. Thus, unlike in Fiore and Burleson, the New Mexico Supreme Court
has issued pre- and post-Ortega decisions suggesting that it announced a new rule
of law in Ortega.
4

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Constitution neither prohibits nor requires retroactive application of judicial

decisions). In the unusual circumstances presented here, however, when no state
appellate court has addressed the retroactivity issue 5 and the federal due process
claim is intertwined with the antecedent issue of state law, it is appropriate for a
federal habeas court to address the state law question to resolve the federal
constitutional claim. See, e.g., Cole v. Young, 817 F.2d 412, 416-22 (7th Cir.
1987) (deciding whether jury was properly instructed as a matter of state law on
the elements of mayhem existing at the time of conviction before turning to
federal constitutional claim); see also Adams v. LeMaster, 223 F.3d 1177, 118283 (10th Cir. 2000) (addressing question of state procedural law to determine
whether federal habeas petition was time-barred).
In New Mexico, the issue of retroactivity arises only when the rule at issue
is in fact a new rule, i.e., when the rule overturns prior case law or makes new
law when law enforcement officers have relied on the prior state of the law.
Mascareas, 4 P.3d at 1228 (quotation omitted). In Mascareas, the New Mexico
Supreme Court quoted with approval language from Teague v. Lane, 489 U.S.

Although the state district court concluded in habeas proceedings that

Ortega is a new rule of law and should not be applied retroactively to Chapmans
conviction, it is unclear whether this court is bound by that state trial court
determination on matters of state law. We need not address this issue, however,
because we conclude that the New Mexico Supreme Court would not apply
Ortega retroactively.
5

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288, 301 (1989), which states that a case announces a new rule if the result was
not dictated by precedent existing at the time the defendants conviction became
final. Mascareas, 4 P.3d at 1229. It is clear that the holding in Ortega was not
dictated by New Mexicos precedents at the time it was decided. See Section
V.A., supra.
Whether a case is applied retroactively is decided on a case-by-case basis
by considering: (1) the purpose of the new rule; (2) the reliance placed upon the
old rule; and (3) the effect retroactive application would have upon the
administration of justice. See Santillanes, 849 P.2d at 367 (construing child
abuse statute). The purpose of Ortega is to requir[e] proof that the defendant
intended to kill (or had the state of mind otherwise generally associated with mens
rea). 817 P.2d at 1204. This factor, however, must be balanced against the
states reliance on the felony murder rule before Ortega. Law enforcement
officials and prosecutors undoubtedly relied on the pre-Ortega felony murder law
for over thirty years. See N.M. Stat. 40A-2-1 (1953). In Santillanes, the New
Mexico Supreme Court concluded that reliance had been placed upon an old rule
after noting several decisions endorsing it. See Santillanes, 849 P.2d at 367.
Similarly, here the New Mexico Supreme Court had previously endorsed the preOrtega rule for felony murder. See Pierce, 788 P.2d at 357; Harrison, 564 P.2d
at 1324. Finally, New Mexico has an interest in the finality of its convictions.
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See Jackson v. State, 925 P.2d 1195, 1197 (N.M. 1996) (explaining that applying
a new rule of statutory interpretation retroactively would unnecessarily diminish
the expectations of finality so important to the rule of law). Reversing
Chapmans twenty-three-year-old conviction, which was properly obtained under
the governing law at the time and upheld on direct appeal and collateral
proceedings, would undermine the states interest in finality. Indeed, even when
the New Mexico Supreme Court has concluded that a subsequent decision stated
the law existing at the time of the conviction, it has distinguished between cases
on direct review from those on collateral review. See State v. Kirby, 930 P.2d
144, 146 (N.M. 1996) (noting that considerations justifying reversal of conviction
based on erroneous instruction do not apply to post-conviction proceedings).
Applying Ortega retroactively would require retrial of those convicted of
felony murder without an Ortega instruction, which may not be feasible
depending on the availability and age of witnesses and evidence. The states
reliance on the finality of its convictions, the New Mexico Supreme Courts
endorsement of the pre-Ortega rule, and the burden of retrying those convicted of
felony murder prior to Ortega outweighs Ortegas retroactive imposition of a
mens rea element in the felony murder statute. Because we conclude that New
Mexico would not apply Ortega retroactively to Chapmans felony murder

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conviction, his conviction does not violate federal due process standards. We
therefore affirm the district courts denial of his Ortega claim.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Chapmans final claims rest on the ineffective assistance of pretrial and
trial counsel. He contends that his pretrial counsel, Douglas Moeller, did not
perform effectively when he allowed Chapman to make an incriminating pretrial
statement, failed to advise Chapman about accomplice liability under the felony
murder doctrine, and did not tell Chapman that duress is not a defense to murder
in New Mexico. Chapman also argues that his trial counsel, Mark Donatelli, gave
ineffective assistance by failing to preserve the pretrial statements of Jim
Humiston, a prosecution witness. The state district court concluded that the
performance of pretrial and trial counsel was reasonably effective under the
circumstances, was not below the minimum level of competence, and in any case
did not prejudice Chapman. The federal magistrate judges recommended
disposition, which was adopted by the district court, determined that the state
courts conclusion was not contrary to or an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984).
Before Chapman is entitled to a COA on his ineffective assistance claims,
he must make a substantial showing of the denial of a constitutional right. 28
U.S.C. 2253(c)(2). Chapman may make this showing by demonstrating that
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reasonable jurists could debate whether . . . the petition should have been
resolved in a different manner or that the questions presented deserve further
proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). After
consideration of Chapmans request for a COA and a de novo review of the
magistrate judges recommended disposition, the district courts order, and the
record on appeal, this court concludes that Chapman has not made a substantial
showing of the denial of a constitutional right and is thus not entitled to a COA
on his ineffective assistance claims.
VII. CONCLUSION
This court AFFIRMS the denial of relief on the Ortega due process claim.
We DENY Chapmans request for a COA on his Harrison due process and
ineffective assistance claims and DISMISS those parts of the appeal.

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