Respondent Robert Tansy, Warden for the New Mexico State Penitentiary, appeals from an order granting petitioner Lonnie Manlove's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Manlove cross appeals, challenging the rejection of one of the grounds for his petition. The dispositive issue is whether the district court erred in concluding that the denial of Manlove's request for a continuance of the trial to obtain a witness violated his due process rights. We hold that the district court did not err. In light of this disposition, we do not reach the other two issues raised on appeal. Accordingly, we affirm the district court's order.

Manlove was charged with kidnapping, criminal sexual penetration, and aggravated assault. The prosecutrix testified that on the evening of February 4, 1979, she went for a walk at about 8:30 p.m. A car pulled up and a man jumped out, pointed a gun in her face, and told her to get in the car. He drove out of town and stopped, then forced her to perform oral sex at gunpoint. However, his attempt at sexual intercourse was unsuccessful. She was able to see his face when the car light came on. She testified that she had seen gloves and shirts in the car, and that she lost a pink comb in the car. She further testified that the inside door handle on her side of the car was missing. After the man dropped her off, she watched the car and tried to memorize its license plate number. She called the police, and gave them a description of her assailant, the car, and the license plate number. She identified Manlove as her assailant at the police station and at trial.

The arresting officers testified that they stopped Manlove in his car at approximately 11:55 p.m. that night. They seized a small handgun from under the driver's seat, and observed black gloves and clothes in the car similar to those described by the prosecutrix. A later search revealed the comb that the prosecutrix claimed she left in the car. Upon inventorying the car, a police officer discovered that the inside door handle on the passenger side was missing. No medical evidence was offered as the prosecutrix had not had a physical examination after the assault.

Trial commenced on Friday, July 6. At 3:30 p.m. on July 6, 1979, Manlove's attorney, Tom Cherryhomes, requested a continuance of the trial until the following Monday, July 9, because he had just learned that a witness who had promised to testify had instead left town. The witness, Elizabeth Pike, was the prosecutrix's roommate on the night of the assault. Pike would have testified that the prosecutrix had concocted stories in the past about being kidnapped, being picked up hitchhiking, and sometimes being molested; that the prosecutrix's statement to the police contained some of the exact language she had previously used to describe sexual fantasies; that the prosecutrix had recanted an abduction story once; and that the prosecutrix was the type of person who would willingly see an innocent man put in jail.

The district court denied the continuance for four reasons: 1) Cherryhomes failed to subpoena Pike within ten days after notice of the trial date, as required by local rule;1 2) Cherryhomes should have telephoned the district attorney's office when he knew he intended to call Pike as a witness, rather than mailing notice; 3) the state had not had an opportunity to examine Pike before trial; and 4) the judge would be out of town the following Monday.

Manlove then presented an alibi defense through friends and family. He did not testify. The jury returned its verdict at 2:38 p.m. on Saturday, July 7, finding Manlove guilty as charged. Pike was served with a subpoena on Monday, July 9.

Manlove moved for a new trial. He submitted Pike's affidavit in which she stated that she had intentionally evaded service of process because she was fearful the prosecutrix would harm her or her animals if she testified. The motion was denied. Manlove filed an appeal as of right, raising as an issue whether denial of the continuance violated his right to due process. The New Mexico Court of Appeals concluded denial of the continuance was not an abuse of discretion because Cherryhomes was not diligent in having a subpoena issued for Pike at such a late date, and affirmed the conviction. Manlove did not seek review in the New Mexico Supreme Court.

Manlove unsuccessfully raised the continuance issue in post-conviction motions and a state habeas petition. The state court concluded in the habeas proceeding that the trial judge denied the continuance because he had plans to go fishing, but that Pike's testimony would have been inadmissible under New Mexico's Rape Shield Law, N.M.Stat.Ann. § 30-9-16.2 It therefore denied the petition.

Manlove filed a habeas corpus petition with the New Mexico Supreme Court, raising denial of the continuance as an issue. While that court questioned the propriety of denying the continuance under the local rule, it concluded that principles of finality precluded further review of the issue. Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237, 243 (1989). Respondent concedes that Manlove exhausted his state remedies as to all issues raised in the present proceeding.

Manlove then filed this federal habeas petition. A magistrate judge issued proposed findings and a recommended disposition in which he concluded, inter alia, that denial of a continuance violated Manlove's due process rights. The district court adopted the magistrate judge's proposed findings and disposition and granted the petition, ordering Manlove released unless a new trial was held within ninety days.3

Respondent contends that the district court used an incorrect standard to determine that denial of a continuance violated Manlove's due process rights.4 He argues that the district court analyzed the issue under the factors for cases that come before the court on direct appeal rather than on habeas review.

Whether the right to due process was violated is a mixed question of law and fact. Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S. Ct. 1490, 108 L. Ed. 2d 626 (1990). The state court's findings are presumed correct, unless one of the factors listed in 28 U.S.C. § 2254(d) is present or the findings are not fairly supported by the record. Id. at 1392 (footnote omitted). Legal conclusions and mixed questions of law and fact are reviewed de novo, although findings of fact underlying mixed questions are accorded the presumption of correctness. Id. at 1393.

Case, 887 F.2d at 1396, held that on direct appeal, a court reviews the denial of a continuance for abuse of discretion, and will not reverse unless the denial was arbitrary or unreasonable and materially prejudiced the appellant. The four factors that may be considered in determining whether a denial is arbitrary and unreasonable are:

the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; a need asserted for the continuance and the harm that appellant might suffer as a result of the district court's denial of the continuance. No single factor is determinative and the weight given to any one may vary, depending on the extent of the appellant's showing on the others.

Id. (quoting United States v. West, 828 F.2d 1468, 1470 (10th Cir.1987)).

However, "when a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion, but 'it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.' " Id. (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981)). " 'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' " Id. at 1397 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d 921 (1964)). Nevertheless, the focus must be on the need for the continuance and the prejudice resulting from its denial. Id.

The district court found that Cherryhomes had not been diligent; that a continuance would have accomplished Manlove's goal of placing the prosecutrix's credibility in question; that a continuance would not have been a great inconvenience to the court, the state, or its witnesses; and that Manlove showed a need for Pike's testimony and prejudice from denial of the continuance. It placed particular emphasis on the need and prejudice factor. We conclude that it applied the correct standard.

As to the district court's analysis of the West factors, the parties dispute whether Cherryhomes was diligent. The relevant, undisputed facts are as follows: Pike's name was mentioned during the preliminary examination held February 16, 1979, but the nature of her potential testimony was not revealed at that time. Cherryhomes did not represent Manlove at that time, but became involved in the case in March 1979. He made several requests to the public defender, whose office represented Manlove at the preliminary examination, to provide him with tapes of the hearing, and was assured the tapes were being transcribed and a copy would be provided to him as soon as that process was completed. The public defender's office never produced the promised transcript.

Cherryhomes finally obtained the tapes from the court and had them transcribed. The record is conflicting as to whether he had a transcript by May 25, or not until June 26, 1979. He stated at the May 25 pretrial conference that he had a copy of the transcript. However, his wife certified that she had completed preparation of the transcript on June 26, 1979, and he testified that this was the date on which the transcript was prepared. After he read the transcript, he immediately made efforts to locate Pike. At first, Pike was reluctant to cooperate, but she eventually agreed to be interviewed on July 3, 1979, three days before the trial was scheduled to commence. Only after Cherryhomes interviewed Pike did the critical nature of her testimony become clear. Before Pike left his office on July 3, Cherryhomes gave written notice to the state of his intent to call Pike. Pike agreed to appear at trial. Nevertheless, Cherryhomes issued a subpoena for Pike on July 5. At 3:10 p.m. on the day of trial, Cherryhomes learned that Pike had left town.

The district court found that Cherryhomes could have obtained the preliminary examination tapes and had them transcribed earlier, so as to comply with the local rule. We agree. A reasonably diligent attorney would not have waited until so close to the trial to have the preliminary examination testimony transcribed and to contact a potential witness identified in the transcript. Although the importance of Pike's testimony is not apparent from reading the transcript, a reasonably diligent attorney would have interviewed the prosecutrix's roommate as a matter of course. However, Cherryhomes' lack of diligence is only one factor to consider, and it is not the most important factor.

As to the inconvenience factor, the parties dispute whether the trial judge, the Honorable Harvey Fort, stated as a reason for denying the continuance that he had planned a fishing trip for Monday, July 9, 1979. Cherryhomes testified to this effect in a state habeas proceeding. In response, Judge Fort submitted an affidavit in which he denied making the fishing trip comment, and stated that he disposed of nineteen cases in Roswell, New Mexico, on July 9. The district court assumed that Judge Fort had conducted court business on July 9, but found nothing in the record to indicate that rescheduling the court business would have produced an undue hardship on anyone. We agree. Further, Judge Fort should have anticipated the possibility that a trial of this nature that starts on a Friday could run over to Monday. Thus, even if Judge Fort did not go fishing Monday, but rather only conducted court business in Roswell, we would still uphold the district court's finding that the trial court would not have been greatly inconvenienced by granting a continuance. Any minor inconvenience was outweighed by Manlove's need for the continuance.

Respondent argues that Pike's testimony would have been largely inadmissible at trial; thus, Manlove was not prejudiced by its exclusion. The state district court on habeas review concluded the testimony would be inadmissible under § 30-9-16, New Mexico's Rape Shield Law. However, the New Mexico Supreme Court concluded that Pike's testimony that the prosecutrix made up stories of rape and abduction in the past that resembled the facts alleged in this case, that she had once recanted such a story, and that she was the sort of person who would willingly see an innocent man put in jail, was not evidence of sexual conduct precluded by the Rape Shield Law but rather "went to the prosecutrix's proclivity for truthfulness and was relevant both to impeach her credibility and as direct evidence in the petitioner's fabrication defense." Manlove, 775 P.2d at 241 n. 2. The court did not agree that the testimony was closely enough related to sexual conduct to be barred by this section, but noted that a trial court's discretion to exclude such evidence must be weighed against a defendant's constitutional right to confront witnesses. Id. The interpretation of state law by New Mexico's highest court is binding on us. O'Brien v. Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 744, 38 L. Ed. 2d 702 (1974).5

To find prejudice, "we look to the entire trial to determine if there is a reasonable probability that with [Pike's] proffered testimony the verdict would have been different." Scott v. Roberts, 975 F.2d 1473, 1477 (10th Cir.1992). The only evidence against Manlove was the prosecutrix's testimony, corroborated in part by the discovery of items in Manlove's car that she had described to the police. The corroborating evidence tends to prove that she was in Manlove's car, but not necessarily that she was sexually assaulted, by Manlove or anyone else. No medical evidence was offered to substantiate that sexual activity, consensual or otherwise, had occurred. There was no confession by the defendant here, but rather Manlove steadfastly maintained his complete innocence. However, the jury obviously disbelieved Manlove's alibi defense. Thus, Pike's testimony was potentially crucial to Manlove's defense. Those portions of Pike's testimony that the New Mexico Supreme Court ruled were admissible would have suggested that the alleged crime was fabricated. Therefore, a reasonable probability exists that the outcome of the trial would have been different if Manlove had been granted the continuance. We agree that Manlove needed Pike's testimony and denial of the continuance prejudiced him. These cases are highly fact specific, but here we agree that the district court did not err in concluding that the denial of a continuance violated Manlove's due process rights.6

The order of the United States District Court for the District of New Mexico is AFFIRMED. Manlove's request for oral argument is DENIED.

PAUL KELLY, Jr., Circuit Judge, dissenting.

This court affirms the granting of the writ after concluding that Ms. Pike's testimony would have assisted in Mr. Manlove's fabrication defense. However, the record establishes unambiguously that Mr. Manlove neither developed a fabrication defense nor suggested to the trial court that a fabrication defense was contemplated. This court relies heavily upon a finding, made during state habeas proceedings, that Mr. Manlove presented a fabrication defense. Although in federal habeas proceedings we normally defer to state court findings of fact, we are not so bound if, after considering the record as a whole, "the factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 769, 66 L. Ed. 2d 722 (1981); Case v. Mondragon, 887 F.2d 1388, 1392 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S. Ct. 1490, 108 L. Ed. 2d 626 (1990).

In the state trial court, Mr. Manlove's only stated ground for seeking admission of Pike's testimony was to impeach the credibility of the prosecutrix. Ms. Pike's testimony would have been extrinsic evidence used to attack the credibility of a witness and therefore inadmissible. See N.M.R.Evid. 608(B) (1986). This court so recognizes, which is why it must rely completely on the fabrication defense not offered at trial to find that "Pike's testimony was potentially crucial to Manlove's defense." See Ct.Op. at 478 n. 5 & 479. The state trial court correctly refused to grant the belated request for a continuance because the only ground on which it was requested was to impeach the prosecuting witness with collateral evidence. While the defense certainly could cross-examine the prosecutrix about any prior fantasizing and stories, to impeach her denial would require a resort to extrinsic evidence which is plainly prohibited under the rule. See Mason v. Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 1941, 118 L. Ed. 2d 547 (1992); United States v. Bowie, 892 F.2d 1494, 1500-01 (10th Cir.1990); United States v. Mangiameli, 668 F.2d 1172, 1175-76 (10th Cir.), cert. denied, 456 U.S. 918, 102 S. Ct. 1776, 72 L. Ed. 2d 179 (1982); Baum v. Orosco, 106 N.M. 265, 742 P.2d 1, 6-7 (App.1987). See also IIIA James A. Chadbourn, Wigmore on Evidence § 979 at 823 (Rev. ed. 1970).

Despite the dicta by the New Mexico Supreme Court that Ms. Pike's testimony was admissible under N.M.R.Evid. 404(A)(2) and 608(A) (1986), Manlove v. Sullivan, 108 N.M. 471, 775 P.2d 237, 241 n. 2 (1989), the testimony does not directly concern the crimes charged, but rather was offered as impeachment evidence. Mr. Manlove's counsel did make an isolated and vague reference to the prosecutrix's background and reputation as a storyteller or fantasizer. See Ct.Op. at 478 n. 5. The isolated mention of the words "storyteller" and "fantasizer" is an insufficient basis to conclude that Mr. Manlove presented the trial court with a fabrication defense. These words were mentioned during a directed verdict motion, renewal of the continuance motion, and during a motion to take judicial notice of a newspaper. Nothing in defense counsel's presentation indicated that Ms. Pike's testimony related to fabrication by the prosecutrix. On the contrary, when counsel specifically enumerated the reasons why Ms. Pike's testimony should be admitted, only credibility was mentioned. II R.S. 215 ("It goes definitely to her credibility...."); 216 ("it goes to her credibility, the complaining witnesses credibility"); 255 ("renewing my request previously made, for a continuance to show the credibility of the sole witness against the defendant"). Indeed, the record indicates that defense counsel never even cross-examined the prosecutrix about her alleged prior fantasizing and storytelling.

Granting the writ in this case also is inconsistent with our most recent decision in this area. In Scott v. Roberts, 975 F.2d 1473 (10th Cir.1992), we held that a failure to grant a continuance was not constitutional error where the prosecutrix's mother would have testified concerning the aftermath of the particular sexual assault charged and impeached the testimony of her daughter.1 The Scott trial court found that the "testimony was material and vital to the defense." Id. at 1475. The defense in Scott had been diligent in attempting to secure the testimony of the alleged victim's mother, unlike this case where the subpoena was obtained the day before trial, served after the trial and the motion for a continuance came during the first day of trial.

Federal courts, in my opinion, should not reformat a petitioner's case and override the often tactical strategy of defense counsel. See Reed v. Ross, 468 U.S. 1, 11, 13-14, 104 S. Ct. 2901, 2907, 2909, 82 L. Ed. 2d 1 (1984). Twelve years after the fact, Mr. Manlove may have second thoughts about his trial strategy and wish that he had presented the court with a valid fabrication defense. However, Mr. Manlove's regrets about trial strategy do not merit constitutional relief without a showing that the denial of the continuance was arbitrary, unreasonable and so prejudicial as to render the trial fundamentally unfair. Because I do not believe that the record supports such a showing, I respectfully dissent.