F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                             APR 5 2000
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    EUGENE BROWN,

                Petitioner-Appellant,

    v.                                                     No. 99-2157
                                                     (D.C. No. CIV-96-1327)
    RON LYTLE, Warden; ATTORNEY                             (D. N.M.)
    GENERAL FOR THE STATE OF
    NEW MEXICO,

                Respondents-Appellees.




                              ORDER AND JUDGMENT           *




Before TACHA , ANDERSON , and LUCERO , Circuit Judges.




         Eugene Brown seeks a certificate of appealablity (“COA”) pursuant to 28

U.S.C. § 2253(c) to challenge the district court’s denial of his petition for a writ

of habeas corpus.   1
                        Finding Brown has not made a substantial showing of the

*
      This order and judgment is not binding precedent, except under the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.
1
         After examining the briefs and appellate record, this panel has determined
                                                                         (continued...)
denial of a constitutional right, we deny his request for COA.    See 28 U.S.C. §

2253(c).


                                             I

       Brown was indicted for kidnapping and criminal sexual penetration in the

first degree. The state court declared a mistrial in his first trial, and at the

conclusion of the second trial, he was convicted of criminal sexual penetration in

the first degree resulting in great mental anguish and kidnaping in the second

degree. The New Mexico Court of Appeals affirmed the conviction and reversed

the trial court’s order regarding restitution. On remand, the trial court amended

its order to require Brown to pay the victim $30,000 for the cost of counseling she

received as a result of the incident for which he was convicted. The New Mexico

Supreme Court denied a petition for writ of certiorari. Thereafter, Brown

requested habeas corpus relief in state district court, which summarily denied his

petition. The New Mexico Supreme Court again denied a petition for writ of

certiorari requesting review of the denial of habeas relief.

       In his federal habeas petition, Brown raised eleven claims. In response to

the magistrate judge’s proposed summary denial of certain claims, Brown


1
 (...continued)
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

                                            -2-
conceded the dismissal of three of the eleven claims raised in the habeas petition.

In his brief in support of his petition for writ of habeas corpus, he addressed and

argued only three of the remaining eight claims. Consequently, the magistrate

judge found that the remaining five claims had been abandoned and recommended

that they be dismissed with prejudice. He did not object to that recommendation.

      In this appeal, Brown continues to urge the three claims that the district

court addressed and denied on the merits. First, he claims he is entitled to habeas

relief for violation of his Sixth Amendment right because his trial counsel was

ineffective. Next, he asserts that his conviction was obtained in violation of his

Fifth Amendment right to be free from double jeopardy. Finally, he claims his

conviction was secured through the prosecution’s knowing use of perjured

testimony, in violation of his Fourteenth Amendment right to due process.

                                          II

      If the habeas claim before us was not decided

      on the merits by the state courts, and the federal district court made
      its own determination in the first instance, we review the district
      court’s conclusions of law de novo and its findings of fact, if any, for
      clear error. But when reviewing the merits of a claim already
      decided by the state courts, we are bound to deny [habeas] relief
      unless the state court’s decision “was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court” or “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.”



                                         -3-
LaFevers v. Gibson , 

, 711 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d)(1) & (2)) (citation omitted).

                                           A

      At Brown’s request, the state trial court declared a mistrial in his first trial.

At the close of the prosecution’s case at the second trial, he moved to dismiss the

case on double jeopardy grounds. The trial court denied the motion, and Brown

also raised his double jeopardy argument on direct appeal. Because this issue was

decided on the merits by the state courts, we employ the deferential standard of

review of 28 U.S.C. § 2254(d)(1) & (2). In applying that standard, we are

mindful that the Antiterrorism and Effective Death Penalty Act of 1996, the

source of the current version of § 2254(d), “increase[d] the deference to be paid

by the federal courts to the state court’s factual findings and legal

determinations.”   LaFevers , 182 F.3d at 711.

      “The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from repeated prosecutions for the same offense.”      Oregon v. Kennedy ,

, 671 (1982).

      Although the Double Jeopardy Clause usually bars retrial where the
      prosecution moves for a mistrial over the objection of the defense, in
      select circumstances it also prevents retrial where the first trial ended
      at the defendant’s request. When a prosecutor goads the defendant
      into requesting mistrial the defendant’s valued right to complete his
      trial before the first jury would be a hollow shell were retrial
      permissible. Therefore, if the government intended to provoke the
      defendant into moving for a mistrial, retrial is barred. The Double

                                          -4-
       Jeopardy Clause applies only where the prosecution intentionally
       goads the defense, not where the prosecution is mistaken, careless, or
       even harassing.

United States v. Valadez-Camarena        , 

, 1162-63 (10th Cir. 1998)

(citing Kennedy , 456 U.S. at 672-73, 679) (further citations and quotations

omitted).

       Whether a prosecutor intended to goad the defense into requesting a

mistrial is a question of fact that is reviewed for clear error.    See 

(quoting Kennedy , 456 U.S. at 675). In denying the motion to dismiss on double

jeopardy grounds made at the second trial, the state trial court found that “the

actions of the State through the office of the District Attorney [did] not rise to

misconduct that would provoke a mistrial.” (III Second Trial Tr. at 603.) We

presume the state court’s findings of fact to be correct “unless the petitioner is

able to rebut that presumption by clear and convincing evidence.”         Pickens v.

Gibson , No. 99-5021, 

, at *2 (10th Cir. March 14, 2000) (citing

28 U.S.C. § 2254(e)). Brown has presented no clear and convincing evidence

rebutting the presumption of correctness, and therefore he is not entitled to habeas

relief on this claim.

                                               B

       With regard to his ineffective assistance of counsel claim, Brown argued

ineffective assistance of counsel in his state habeas petition, but the state court



                                               -5-
did not decide the claim on the merits. Consequently, we accord no special

deference to the state court’s procedural dismissal of this claim.      See Aycox v.

Lytle , 

, 1177 (10th Cir. 1999). Instead, we review the district

court’s conclusions of law de novo and its factual findings for clear error.         See

LaFevers , 182 F.3d at 711.

       Brown claims his Sixth Amendment rights were violated because his trial

counsel was ineffective in two respects: (1) counsel did not discover and disclose

that the victim’s treating psychologist, who testified at trial for the state, was

having a relationship with the prosecutor who initiated the prosecution; and (2) he

did not demand a hearing to determine the competency of the victim to testify.

The Sixth Amendment right to effective assistance of counsel is violated if

counsel’s performance falls below an objective standard of reasonableness and the

defense is prejudiced by that deficient performance.       See Strickland v.

Washington , 

, 687-88 (1984). To establish prejudice, Brown “must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”       

       With regard to the allegation that counsel was ineffective for failing to

discover and disclose a personal relationship between the treating psychologist

and the prosecutor who initiated the case against Brown, we agree with the

district court that, even assuming prejudice, he has not shown counsel’s



                                             -6-
performance was objectively unreasonable. Our review of the record reveals no

evidence indicating that defense counsel had reason to delve into the details of the

expert witness’s personal relationships. We are not persuaded that defense

counsel’s failure to discover and disclose the relationship between the former

prosecutor and an expert witness fell below an objective standard of

reasonableness. The authority Brown cites in his brief to this Court does not

bolster his argument.   United States v. Buchanan    is distinguishable because it

addressed the question of whether nondisclosure of a relationship between the

defendant’s former wife and a government investigator violated the government’s

obligation to disclose exculpatory evidence.     See United States v. Buchanan , 

, 1442-43 (10th Cir. 1989). Here, Brown is arguing that his own

counsel was ineffective in not discovering the relationship, not that the

government failed to disclose exculpatory evidence.

      Brown also argues that his counsel’s failure to demand a competency

hearing before the victim, who is mildly retarded, was allowed to testify fell

below an objective standard of reasonableness. To show that there is a reasonable

probability that, but for counsel’s failure to request a competency hearing, the

outcome of the trial would have been different, Brown would have to demonstrate

that, as a result of the competency hearing, the victim would not have been

allowed to testify. In other words, he would have to show there is a reasonable



                                           -7-
probability that the victim would have been found incompetent to testify. Under

New Mexico law, competency is presumed.         See Rule 11-601 NMRA (2000).

There is simply no evidence in the record indicating that the defense could have

overcome the presumption that the victim was competent to testify.     See Heights

Realty, Ltd. v. Phillips , 

, 78 (N.M. 1988) (stating that burden is on

party alleging incompetency to overcome presumption of competency by clear and

convincing evidence). On the contrary, the record indicates that the victim

understood the oath, differentiated between telling the truth and telling a lie, and

understood the consequences of being untruthful. In addition, her answers to

various questions demonstrated sufficient capacity to observe, recollect, and

communicate. See State v. Fairweather , 

, 1082 (N.M. 1993).

Brown therefore has not shown prejudice resulting from counsel’s failure to

demand a hearing to determine the victim’s competency to testify and

consequently has not established a denial of his right to effective assistance of

counsel.




                                           C

      Finally, with regard to Brown’s claim concerning the knowing use of

perjured testimony in violation of his due process rights, the district court decided



                                          -8-
that issue in the first instance, and we therefore review its factual findings for

clear error and its legal conclusions de novo.    See LaFevers , 182 F.3d at 711.

       The presentation of false testimony may constitute grounds for habeas

relief. See Lister v. McLeod , 

, 17 (10th Cir. 1957). Habeas relief is

available, however, only if Brown shows the prosecution knowingly used false

testimony. See Smith v. Roberts , 

, 820 n.2 (10th Cir. 1997). We

discern no clear error error in the district court’s finding that the record is devoid

of evidence that the prosecution knowingly used false testimony. On the contrary,

our review of the record suggests that the prosecution believed the trial testimony

was truthful. The witness told one story before the grand jury and then went to

the government to confess that his grand jury testimony was false. At that time,

he told a story consistent with the testimony he gave at trial. The record supports

the witness’s trial testimony explaining the circumstances surrounding his

recantation, and he was extensively cross-examined on this point.




                                            -9-
      Because Brown has not made a substantial showing of the denial of a

constitutional right, we DENY his application for a certificate of appealability.

See 28 U.S.C. § 2253(a)(2). This matter is DISMISSED.



                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




                                        -10-