Derrick V. Ervin v. DWAYNE SANTISTEVAN, Warden

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DERRICK V. ERVIN,
Petitioner - Appellant,
v.
DWAYNE SANTISTEVAN, Warden;
HECTOR H. BALDERAS, Attorney
General for the State of New Mexico,
Respondents - Appellees.
No. 22-2102
(D.C. No. 2:19-CV-01218-KG-JHR)
(D.N.M.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Petitioner-Appellant Derrick Ervin, a state inmate appearing pro se, seeks to
appeal from the district court’s dismissal of his habeas petition with prejudice, 28 U.S.C.
§ 2254. Ervin v. Santistevan, No. 19-cv-1218, 2022 WL 2918384 (D.N.M. July 25,
2022). He argues that his indictment was insufficient and he was denied effective
assistance of counsel. A COA is a jurisdictional prerequisite to our appellate review.
Miller-El v. Cockrell, 537 U.S. 322, 336–37 (2003). We deny a certificate of
appealability (COA) and dismiss the appeal.
* This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
December 14, 2022
Christopher M. Wolpert
Clerk of Court
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Background
Mr. Ervin was convicted of several crimes, including sex offenses involving a
minor. R. 90–96. When Mr. Ervin was confronted about compromising pictures of his
step-daughter on the family’s home computer, he destroyed the hard drive with barbells
and threw the computer down onto the porch. State v. Ervin, 177 P.3d 1067, 1070 (N.M.
Ct. App. 2007). Compromising photographs of his step-daughter were also found on a
digital camera. Id. Among other counts, a jury convicted him on 14 of 20 identically
stated counts of second-degree exploitation of a child by manufacturing child
pornography, and acquitted him of the remaining six. R. 82–89, 151–71. After a
partially successful direct appeal, Ervin, 177 P.3d 1067, R. 286–87, and a partially
successful state habeas proceeding, R. 37–40, Mr. Ervin is currently serving 27 years for
(1) one count of first degree criminal sexual penetration of a minor (“CSPM”); (2) three
counts of third-degree criminal sexual contact of a minor (“CSCM”); (3) one count of
third-degree tampering with evidence; (4) fourteen counts of second-degree sexual
exploitation of children by manufacturing child pornography; and (5) one count of fourth-
degree sexual exploitation of children by possession of child pornography. R. 103–08.
In his federal habeas petition, Mr. Ervin asserts two grounds for relief. R. 5–20.
First, that the identically worded and undifferentiated 20 counts of second-degree
exploitation of a child by manufacturing violated his right to be protected from double
jeopardy. R. 12. Second, that ineffective assistance of counsel led to his conviction for
one count of CSPM. R. 9–10. On appeal, Mr. Ervin also argues that to the extent the
district court deemed some of his arguments waived, this was due to denial of counsel.
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He requests this court overlook errors in form or appoint counsel and allow him to
resubmit his original habeas petition. Aplt. Br. & Application for COA (“Aplt. Br.”)
at 22–24.
Discussion
To obtain a COA from this court, Mr. Ervin must make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district
court denies a petition on procedural grounds, a petitioner must show that reasonable
jurists would find it debatable whether (1) the petition states a valid claim of a denial of
constitutional right and (2) the district court was correct in its procedural ruling. Id.
State-court decisions on the merits are reviewed under a deferential standard and a
federal court may not grant an application unless the state court disposition resulted in a
decision that was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court”; or, was (2) “based on an
unreasonable determination of the facts” in view of the evidence presented in the state
court proceeding. 28 U.S.C. § 2254(d).
A state-court decision is “contrary to” the Supreme Court’s clearly established
precedent if it “applies a rule that contradicts the governing law set forth in [Supreme
Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a
decision of th[e] Court and nevertheless arrives at a result different from [that]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state-court decision is
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an “unreasonable application” of Supreme Court law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s
case.” Id. at 407–08. The test is not whether a federal court in its independent judgment
views the state-court resolution as an incorrect application of clearly established law, but
rather whether the state-court’s resolution is unreasonable, not merely wrong. Gipson v.
Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
I. Insufficient Indictment
Sufficiency of an indictment is evaluated for adequate notice and protection
against double jeopardy. Russell v. United States, 369 U.S. 749, 763–64 (1962). Mr.
Ervin challenges his convictions on 14 of 20 identically worded counts for second-degree
sexual exploitation of a child by manufacturing.1 Regarding adequate notice, he argues
the indictment was deficient because the jury did not know which evidence corresponded
to which charge, shown by a note the jury sent to the judge during deliberations. Aplt.
Br. at 9–10. He also argues that he lacked adequate notice himself. Id. at 12. The New
Mexico Supreme Court did not make express findings on this issue when it resolved his
1 The state district court denied Mr. Ervin’s petition for a writ of habeas corpus.
R. 411. Mr. Ervin raised the sufficiency of the indictment and double jeopardy before the
New Mexico Supreme Court in his petition for certiorari. R. 427, 440–43. The New
Mexico Supreme Court issued the writ in part with no express findings. R. 37–40, 470–
71. State courts must have “one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Here, the state does not dispute that
Mr. Ervin satisfied exhaustion in its response to Mr. Ervin’s federal habeas petition.
R. 47. Thus, this court declines to take an “unusual step” to address the defense of
exhaustion sua sponte. See Gonzales v. McKune, 279 F.3d 922, 926 (10th Cir. 2002)
(en banc).
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state petition for habeas corpus. R. 470–71. However, its resolution is deemed on the
merits absent indication the state court did not reach the merits. Gipson, 376 F.3d
at 1196. As the district court noted, the state court could find that the first Russell
criterion is satisfied because the focus is on what the defendant, not the jury, knows, and
Mr. Ervin had actual notice. Ervin, 2022 WL 2918384, at *4. Even if the indictment was
deficient, the state court could reasonably conclude it was cured through introduction of
photographs and Mr. Ervin’s wife’s testimony that differentiated the identically-stated
charges for second-degree sexual exploitation of a child by manufacturing. Id. at *4 n.5.
On appeal, Mr. Ervin argues that such a resolution is contrary to clearly
established law because Russell states that in addition to informing the defendant of the
charges against him, an important corollary is to inform the court of the facts alleged.
Aplt. Br. at 10; Russell, 369 U.S. at 768. In light of Hamling v. United States, “an
indictment is sufficient if it . . . contains the elements of the offense charged and fairly
informs a defendant of the charge.” 418 U.S. 87, 117 (1974). The federal district court
did not explicitly rely on Hamling, but it followed Hamling’s reasoning that adequate
notice in the indictment is based on whether the defendant was informed. Further, the
Supreme Court in United States v. Resendiz-Ponce reiterated that the first constitutional
requirement for a sufficient indictment is that it contains the elements of the offense and
informs the defendant of the charges. 549 U.S. 102, 108 (2007). Thus, the district court
recognized that focusing on Mr. Ervin’s knowledge is not contrary to clearly established
federal law.
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Mr. Ervin relies on out-of-circuit cases for his claim that he had inadequate notice
and that later actual notice does not cure the deficiency. United States v. Jenkins,
675 F. Supp. 2d 647 (W.D. Va. 2009); Valentine v. Kenteh, 395 F.3d 626 (6th Cir. 2005).
As noted by the district court, it would not be an unreasonable application of federal law
for the state court to follow the reasoning in Parks v. Hargett over out-of-circuit case law.
Ervin, 2022 WL 2918384, at *4 (citing Parks v. Hargett, No. 98-7068, 1999 WL 157431,
at *3 (10th Cir. 1999) (unpublished)). Holding that due process may be satisfied if the
defendant receives actual notice of the charges against him even if the indictment was
deficient, Parks found that the defendant received actual notice prior to trial from his
preliminary hearing. 1999 WL 157431, at *3.
Here, Mr. Ervin waived a preliminary hearing, but the state court record supports
that he received actual notice of the charges against him. We note that Mr. Ervin was the
one who used barbells to destroy the computer containing compromising photos of his
step-daughter. Be that as it may, Mr. Ervin’s attorney testified that he reviewed the
matter with his client extensively, was engaged in discovery and evaluated each charge
separately, and discussed a plea offer with his client which Mr. Ervin declined. R. 27–
28; see State v. Lente, 453 P.3d 416, 422–23 (N.M. 2019). It would not be unreasonable
for the state court to conclude that the criminal information was sufficient to enable Mr.
Ervin to prepare a defense, and that even if it was initially insufficient it was cured by the
introduction of specific photographs and his wife’s testimony. Moreover, Valentine did
not foreclose the possibility that evidence at trial may differentiate counts to provide the
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defendant actual notice. See 395 F.3d at 633–34. Thus, the state-court’s resolution is not
contrary to clearly established law.
Turning to protection against double jeopardy, Mr. Ervin argues that because the
jurors did not know which exhibit corresponded with each count, there was no way to
know whether the verdict on any count was unanimous or whether he was convicted
multiple times for the same offense. Aplt. Br. at 12–13. And, he argues, there is no way
to know with accuracy to what extent he could plead a former acquittal or conviction
against future prosecution, similar to the Sixth Circuit case of Valentine, 395 F.3d 626.
Aplt. Br. at 11–13. The New Mexico Supreme Court had reasonable bases for
determining that Mr. Ervin was not punished multiple times for the same offense:
(1) 13 distinct photographs supported 13 separate manufacturing counts, and (2) Mr.
Ervin’s wife’s testimony was sufficient for the jury to find that there was at least one
more distinct photograph, supporting the 14th count. Further, the New Mexico Supreme
Court had reasonable bases to find Mr. Ervin is adequately protected from future
prosecution for those photographs and the photograph identified by his wife’s testimony.
Thus, the district court determined that the state-court’s resolution is not contrary to
clearly established law. Given the standard of review, the district court’s resolution is not
reasonably debatable.
To the extent Mr. Ervin raised an independent issue of a unanimous jury verdict,
the federal district court deemed it waived. Ervin, 2022 WL 2918384, at *4 n.7. Issues
raised for the first time in objections to a magistrate judge’s recommendation are deemed
waived. Standing Akimbo, LLC v. United States through IRS, 955 F.3d 1146, 1159
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(10th Cir. 2020). We construe pro se filings liberally, but it is not the role of the court to
act as an advocate for a pro se litigant. United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009). Mr. Ervin states in his federal habeas petition under “Ground Two:
Double Jeopardy” that it was unclear whether the jury’s conviction on any count was
reached unanimously. R. 12. In his objection to the magistrate judge’s report, he has a
section entitled “Jury Unanimity” within his arguments related to insufficient indictment
and double jeopardy. R. 675. Although on appeal Mr. Ervin contends that he sufficiently
raised the independent issue of jury unanimity in his habeas petition, he presents the issue
within the context of double jeopardy throughout. Jurists of reason would not find it
debatable whether the district court was procedurally correct in deeming this issue
waived.
II. Ineffective Assistance of Counsel
Mr. Ervin must prove two elements to establish ineffective assistance of counsel:
(1) that counsel’s performance was deficient and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Mr. Ervin
argues that trial counsel erred by failing to cross-examine the state’s “key witness”
because his trial counsel did not know the law. R. 9–10. He contends that failure to
cross-examine prejudiced him because (1) it was the sole, unchallenged basis for adding
the most serious count, the CSPM count; and (2) it caused a lack of exculpatory evidence
to be presented. Id.
The New Mexico state district court denied habeas relief after holding two
evidentiary hearings, finding the decision not to cross-examine the witness was tactical.
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R. 24–30. Applying a doubly deferential standard because the state court adjudicated the
claim on the merits, the district court’s decision rejecting the ineffective assistance claim
is not reasonably debatable. See Cullen v. Pinholster, 563 U.S. 170, 190 (2011). Counsel
could reasonably believe that the jury might conclude that a witness’s single general
statement was insufficient to support the CSPM charge and did not want to invite
additional evidence that might support the charge. The district court’s recognition that
the state-court decision was not an unreasonable application of federal law is not
reasonably debatable.
To the extent Mr. Ervin argues that counsel was independently ineffective because
he did not know the law, the federal district court deemed the argument waived because it
was presented for the first time in an objection to the magistrate judge’s report. See
Standing Akimbo, 955 F.3d at 1159. Further, Mr. Ervin’s statement that he continued the
argument of the New Mexico State Public Defender is not specific enough to state which
parts of the magistrate judge’s report he objected to. R. 676. Jurists of reason would not
find it debatable whether the district court was procedurally correct.
III. Request for Counsel
Finally, on appeal Mr. Ervin requests counsel and an opportunity to resubmit his
federal habeas petition. Aplt. Br. at 24. First, there is no constitutional right to counsel
outside of an appeal from a criminal conviction. See Davila v. Davis, 137 S. Ct. 2058,
2065 (2017). The decision whether to appoint counsel in a habeas action is within the
sound discretion of the habeas court unless the case is so complex that denial of counsel
amounts to a denial of due process. See Fleming v. Evans, 525 F. App’x 652, 655
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(10th Cir. 2012) (unpublished). The district court acted within its discretion in
determining Mr. Ervin was representing himself in a capable manner, and the case is not
so complex that counsel was required; thus, we reject Mr. Ervin’s claim that the district
court should have appointed counsel.
Mr. Ervin argues that failure to appoint counsel led to his errors in preserving
arguments and asks this court to overlook errors in form. Aplt. Br. at 22–24. Again, we
construe pro se filings liberally but the court does not act as an advocate for a pro se
litigant. Pinson, 584 F.3d at 975. The district court properly exercised its discretion to
deny appointment of counsel and Mr. Ervin’s arguments were liberally construed as a pro
se litigant. Thus, his argument lacks merit.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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