F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 1 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TIMOTHY WAYNE DUNCAN,

                Petitioner-Appellant,

    v.                                                    No. 98-2289
                                                   (D.C. No. CIV-95-131-SC)
    LAWRENCE BARRERAS, Warden,                             (D. N.M.)
    N.M. State Penitentiary; ATTORNEY
    GENERAL FOR THE STATE OF
    NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




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      This order and judgment is not binding precedent, except under the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

       Petitioner was originally convicted in state court on fourteen counts

including charges of aggravated burglary, criminal sexual penetration, and armed

robbery and was sentenced to forty-one and one-half years’ imprisonment. After

petitioner’s successful appeal of this conviction,   see State v. Duncan , 

, 563 (N.M. Ct. App. 1990), he was retried and found guilty on two counts of

armed robbery. Applying an habitual offender enhancement, which had not been

part of the original sentence, the trial court then sentenced petitioner to a total

term of thirty-four years’ imprisonment. That second sentence was affirmed on

appeal. See State v. Duncan , 

, 388 (N.M. Ct. App. 1994).

       Petitioner then brought this action in the federal district court pursuant to

28 U.S.C. § 2254, arguing that he had been the victim of prosecutorial

vindictiveness. The magistrate judge, without holding an evidentiary hearing,

recommended that petitioner’s application be denied. The district court adopted

the magistrate judge’s proposed findings and recommendation and dismissed the

petition with prejudice. This appeal followed.

       On appeal, petitioner again argues he was denied due process when the

prosecutor pursued habitual offender proceedings after his successful appeal, and




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further maintains that he is entitled to an evidentiary hearing on his claim of

prosecutorial vindictiveness.

              Because this case was filed before the AEDPA’s enactment,
       pre-amendment standards of review apply. Thus, while we review
       the legal bases for the district court’s dismissal of the petition de
       novo, we afford deference to the state court’s construction of state
       law. We lack authority to correct errors of state law made by state
       courts. We presume that the state court’s factual findings are
       correct, and we review the district court’s factual findings for clear
       error. Where the district court’s factual findings are based solely
       upon a review of the state court record, however, they are subject to
       this court’s independent review.

See Tyler v. Nelson , 

, 1226-27 (10th Cir. 1999) (quotation and

citations omitted).

       A criminal defendant cannot be punished, consistent with due process, for

exercising his constitutional rights to appeal and to trial de novo.   See United

States v. Raymer , 

, 1040 (10th Cir. 1991). Thus, when a defendant

successfully appeals a conviction, as did this petitioner, he may not be given a

harsher sentence after retrial unless cogent reasons appear on the record to

support the resentencing decision.      See North Carolina v. Pearce , 

,

726 (1969). The rule of    Pearce has been read to apply a rebuttable presumption

of vindictiveness under those circumstances.        See Wasman v. United States , 

, 565 (1984).

       The Pearce rule also applies to prosecutors, effectively preventing them

from “‘[upping] the ante’ by filing felony charges when a convicted

                                             -3-
misdemeanant exercises his statutory appellate right to trial        de novo. ” Raymer ,

941 F.2d at 1040 (citing    Blackledge v. Perry , 

, 27-29 (1974)). “A

person convicted of an offense is entitled to pursue his statutory right to a trial    de

novo , without apprehension that the State will retaliate by substituting a more

serious charge for the original one, thus subjecting him to a significantly

increased potential period of incarceration.”       Blackledge , 417 U.S. at 28.

       “The test [for prosecutorial vindictiveness] is whether, as a practical

matter, there is a realistic or reasonable likelihood of prosecutorial conduct that

would not have occurred but for hostility or punitive animus towards the

defendant because he exercised his specific legal right.”        United States v. Wall , 

, 1448 (10th Cir. 1994) (quotations omitted). As with vindictiveness in

sentencing, the State can rebut the presumption of prosecutorial vindictiveness by

advancing “a legitimate nonvindictive justification for the greater charge.”

Wasman , 468 U.S. at 566.

       At the sentencing hearing on the habitual criminal enhancement, the State

submitted evidence that it had offered petitioner a plea bargain before his first

trial in which the State agreed to dismiss certain counts and to forego filing

habitual criminal charges in return for petitioner’s guilty plea to other counts.

Petitioner rejected this offer and was later convicted. In explaining why she had

not initially asked for the habitual criminal enhancement, the prosecutor testified


                                              -4-
that the trial judge in the first case had indicated to her that he would not sentence

petitioner for a longer term than that received by his co-defendant. This evidence

was undisputed. Because petitioner and his co-defendant had roughly equal

sentences, even without the habitual offender enhancement, the prosecutor did not

ask for the enhancement after the first trial. The judge in the second trial,

however, had no such qualms about equality of sentences and did not limit the

prosecutor in requesting the habitual enhancement. We have held that refusal by

the government to reinstate a previously rejected plea offer prior to a second trial

does not raise a presumption of vindictiveness.   See United States v. Carter , 

, 1442-43 (10th Cir. 1997),    cert. denied , 

(1998). As in

Carter , the granting of the new trial here had nothing to do with the plea

negotiations. Additionally, because the second trial judge had a different

sentencing philosophy than the first judge, the prosecutor was able to ask for the

habitual criminal enhancement she would have requested the first time. There

was no evidence that the prosecutor would not have pressed for the habitual

enhancement after the second trial “but for hostility or punitive animus toward the

defendant because he exercised his specific legal right” to appeal his first

conviction. See Raymer , 941 F.2d at 1042 (quotation omitted). We thus conclude

that, under the circumstances of this case, no presumption of prosecutorial

vindictiveness should attach.


                                           -5-
       Petitioner can still prevail without the presumption if he can show actual

vindictiveness. To the extent petitioner argues such, we agree with the State that

the prosecutor’s opinions and/or feelings toward petitioner, as established in the

felony enhancement hearing held by the State court, do not constitute

“vindictiveness” as that term is used in a constitutional sense. “[T]he mere

presence of a punitive motivation behind prosecutorial action does not render

such action unconstitutional.”     Carter , 130 F.3d at 1443. The hostility or punitive

animus necessary to establish vindictiveness must arise from the defendant’s

exercise of his constitutional rights.   See 

above, there was no

evidence that the prosecutor pressed for the habitual enhancement in an effort to

retaliate against petitioner for his successful appeal. Her anger and fear of

defendant was predicated on perceived threats by him and information received

from third parties, not on petitioner’s exercise of his constitutional rights.

       Petitioner’s second issue is his contention that he should have received an

evidentiary hearing in the district court. Petitioner, however, did not move for an

evidentiary hearing until after the magistrate judge had issued his proposed

findings and recommended disposition.      1
                                                Thus, his motion was untimely. Further,


1
       The district court had originally scheduled an evidentiary hearing because
the State had been unable to locate the relevant sentencing transcripts.        See R.
Vol. I at tab 30. After the State located those transcripts, however, respondent
filed an unopposed motion to vacate the evidentiary hearing.         See 

34. In
                                                                             (continued...)

                                               -6-
because the issues in this case can all be determined by reference to the state

court transcript, there is no factual dispute about any material issue which would

justify a federal evidentiary hearing.   See Dever v. Kansas State Penitentiary   , 

, 1535 (10th Cir. 1994).

       The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




1
 (...continued)
a letter to the court, petitioner’s attorney agreed that, at that time, an evidentiary
hearing did not appear necessary.      See 

42 attachment “A”. The letter
further stated, however, that “Mr. Duncan would like to reserve the right to
request that the court reconsider his motion for an evidentiary hearing should the
state raise any arguments in their response to Mr. Duncan’s Brief-in-Chief that
pertain to matters not contained in the transcripts.”     

then filed its motion to dismiss and supporting brief. It was at
this time that petitioner should have renewed his motion for an evidentiary
hearing. Petitioner’s brief in response, however, makes no mention of the need
for an evidentiary hearing and no renewed motion was filed. By waiting until
after the magistrate judge had entered his proposed findings and recommended
disposition, petitioner waived his right to an evidentiary hearing.

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