UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VALENTE LOPEZ,

Petitioner - Appellant,

v.

JOE WILLIAMS, Warden,New Mexico Correctional Facility;ATTORNEY GENERAL FOR THESTATE OF NEW MEXICO,

Respondents - Appellees.

No. 00-2247

D.C. No. CIV-97-952-MV

(D. New Mexico)

ORDER AND JUDGMENT(*)

Before EBEL, ANDERSON, andKELLY, Circuit Judges.

Petitioner Valente Lopez appeals the district court's denial of his habeascorpus petition.(1) The federal claim raisedis a claim that the due process clause ofthe Fourteenth Amendment was violated when Lopez was convicted of the crimeof child abuse without requiring proof of an essential element of scienter. SeeFiore v. White, 531 U.S. 225, 228-29 (2001). Lopez was convicted of child abuseunder New Mexico law, which, at the time of his bench trial, required a showingof only ordinary civil negligence. He was sentenced to nineteen years'imprisonment. While his conviction was pending on appeal before the NewMexico Court of Appeals, the New Mexico Supreme Court interpreted the childabuse statute to require a showing of criminal negligence. The court of appeals,however, affirmed his conviction and sentence. Lopez claims that his convictionviolates his federal constitutional right to have the State prove each element ofa criminal offense beyond a reasonable doubt. We granted a certificate ofappealability on this issue, and we reverse.

I. Procedural History

Lopez was charged with first-degree child abuse in violation of N.M. Stat.Ann. § 30-6-1(C).(2) Up through thetime that Lopez was convicted and sentenced,New Mexico courts had interpreted the child abuse statute as a strict liabilitystatute, which required no showing of criminal intent. See, e.g., State v. Lucero,647 P.2d 406, 407-08 (N.M. 1982); State v. Crislip, 796 P.3d 1108, 1115(N.M. Ct. App. 1990). After Lopez appealed his conviction and sentence to theNew Mexico Court of Appeals, but before that court decided his appeal, theNew Mexico Supreme Court decided Santillanes v. State.

In Santillanes, the highest court of New Mexico held that "ourinterpretation of [§ 30-6-1(C)] requires that the term 'negligently' be interpretedto require a showing of criminal negligence instead of ordinary civil negligence." 849 P.2d 358, 362 (N.M. 1993). It went on to state:

[W]e conclude that the civil negligence standard, as applied to thechild abuse statute, improperly goes beyond its intended scope andcriminalizes conduct that is not morally contemptible. . . . Weconstrue the intended scope of the statute as aiming to punishconduct that is morally culpable, not merely inadvertent. . . . Weinterpret the mens rea element of negligence in the child abusestatute, therefore, to require a showing of criminal negligence insteadof ordinary civil negligence. That is, to satisfy the element ofnegligence in Section 30-6-1(C), we require proof that the defendantknew or should have known of the danger involved and acted witha reckless disregard for the safety or health of the child.

Id. at 365. Recognizing that its holding was a departure from previous judicialinterpretation of the statute, the court went on to address the appropriateapplication of its decision to other cases. After analyzing prospective orretroactive application under Linkletter v. Walker, 381 U.S. 618 (1965), the courtheld that its decision was not retroactive and would be applied prospectively. Santillanes, 849 P.2d at 367. And, in the very last sentence of the opinion, thecourt stated that its decision would "govern all cases which are now pending ondirect review, provided the issue was raised and preserved below, and all casespresently pending but in which a verdict has not been reached." Id. at 368.

After Santillanes was decided, Lopez amended his appeal to claim that hisconviction could not stand because the State did not prove criminal negligence,which Santillanes held was an element of the crime. The court of appeals,however, affirmed Lopez's conviction and sentence, holding that he was notentitled to the benefit of the Santillanes decision because he had not preserved theissue at trial. The court held:

[A]lthough the standard of criminal negligence may not have beenmet in this case, an issue we do not decide, the civil standard wasmet. As we pointed out in the second calendar notice, the standardset forth in Santillanes does not apply to this case. This case wasprosecuted and Defendant was sentenced long before the Santillanesdecision, and there is no indication that the Santillanes issue wasraised and preserved below. Therefore, the trial court relied on thecorrect standard and we will uphold its determination.

R., Tab 1, Ex. F at 3-4 (citation omitted). Lopez then petitioned for a writ ofcertiorari, seeking review by the New Mexico Supreme Court; that petition wasdenied.

Lopez sought state post-conviction relief, again arguing that his convictionviolated his federal due process rights in light of the Santillanes decision. Thestate court summarily denied the post-conviction petition, and the New MexicoSupreme Court denied Lopez's request for review.

Having exhausted his state remedies, Lopez filed a petition for habeasrelief pursuant to 28 U.S.C. § 2254 in federal district court. The magistrate judgerecommended that the petition be denied; the district court summarily adopted themagistrate's findings and recommendation and dismissed the habeas petition.

II. AEDPA and Procedural Bar

If a state court denies a federal claim on the merits, we review the claimwithin the constraints of the Antiterrorism and Effective Death Penalty Act(AEDPA). McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001),cert. denied, 123 S. Ct. 165 (2002). We may grant relief only if the state courtdecision "'was contrary to, or involved an unreasonable application of, clearlyestablished Federal law, as determined by the Supreme Court of the UnitedStates,' . . . or 'was based on an unreasonable determination of the facts in lightof the evidence presented in the State court proceeding.'" Id. (quoting 28 U.S.C.§ 2254(d)(1) and (2)).

If a state court denies a federal claim on the basis of a separate stateprocedural deficiency, we cannot reach the merits of the claim at all unless (1) thestate ground of decision was not adequate and independent of federal law; or(2) the petitioner has established a basis for excusing his procedural default. Id. at 976.

And, finally, if a state court did not reach the merits of a federal claim, andour review is not barred by an adequate and independent state proceduraldisposition, we review the claim on the merits without constraint imposed byvirtue of the state court judgment: we review the federal district court's legalconclusions de novo and factual findings for clear error. Id. at 975.

In deciding whether the state court addressed the merits of Lopez's federaldue process claim, we look to the substance of the state court disposition. Lopezargued on appeal that his conviction violated federal due process, in light ofSantillanes' holding that criminal negligence was an essential element of felonychild abuse, because the State had been required to prove only ordinarynegligence, not criminal negligence, at his trial. The New Mexico Court ofAppeals refused to apply Santillanes to Lopez's case and denied relief becauseLopez did not preserve the mens rea issue at trial. However it is denominated,that is plainly a procedural default ruling.

Recently, in Cargle v. Mullin we clarified when a state appellate court'srejection of an unpreserved claim is properly deemed a procedural default,even when it has not been explicitly designated as such by the state court. ___ F.3d ___, Nos. 01-6027, 01-6041, 2003 WL 170427, at *7 (10th Cir. Jan. 27,2003). Although Cargle involved the slightly different context of appellateplain-error review, it is instructive. In Cargle, we concluded that:

A state court may deny relief for a federal claim on plain-errorreview because it finds the claim lacks merit under federal law. Insuch a case, there is no independent state ground of decision and,thus, no basis for procedural bar. Consistent with that conclusion,the state court's disposition would be entitled to § 2254(d) deferencebecause it was a form of merits review. On the other hand, a statecourt could deny relief for what it recognizes or assumes to befederal error, because of the petitioner's failure to satisfy someindependent state law predicate. In such a case, that non-meritspredicate would constitute an independent state ground for decisionwhich would warrant application of procedural-bar principles onfederal habeas. If the state procedural bar were then excused forsome reason, the federal court would be left to resolve thesubstantive claim de novo, unconstrained by § 2254(d).

Id. (citation omitted). The case before us, unencumbered by the extralayer ofplain-error review, presents an even more straightforward case of procedural bar. Here, the state court summarily rejected Lopez's federal claim because he failedto satisfy an independent state predicate­he did not preserve the issue at trial. The state court's preservation requirement, a non-merits predicate to its rejectionof Lopez's federal claim, is plainly an independent state ground that implicatesprocedural-bar principles on federal habeas. Id.

The critical question, therefore, is whether there is reason to excuse theprocedural bar.

We will not consider issues on habeas review that have beendefaulted in state court on an independent and adequate stateprocedural ground, unless the petitioner can demonstrate cause andprejudice or a fundamental miscarriage of justice. A state proceduralground is independent if it relies on state law, rather than federallaw, as the basis for the decision. To be adequate, a state'sprocedural rule must have been firmly established and regularlyfollowed when the purported default occurred.

McCracken, 268 F.3d at 976 (citations and quotations omitted). It is clear that thestate's procedural bar in this case was independent of federal law. The bar restson the lack of issue preservation, which is clearly a matter of state law. It is notat all clear, however, that this procedural rule­that lack of proof on an essentialelement of a crime must be preserved to receive any review on appeal (includingfundamental-error review)­was firmly established or regularly followed at thetime of Lopez's trial. This is critical here because relieving the State of itsburden to prove an essential element of the offense is fundamental error. SeeState v. Osborne, 808 P.2d 624, 632 (N.M. 1991).(3)

The concept of fundamental error is firmly established in New Mexico law. In a pre-Santillanes decision, the New Mexico Supreme Court held that "[a]nexception to the general rule barring review of questions not properly preservedbelow . . . applies in cases which involve fundamental error. Fundamental errorcannot be waived." Id. (quotation omitted). Thus, for example, because thefailure to instruct on the essential elements of an offense is fundamental error,"it is irrelevant that the defendant was responsible for the error by failing toobject to an inadequate instruction or, as occurred in this case, by objecting to aninstruction which might have cured the defect in the charge to the jury." Id. Notably, in Osborne, the court was faced with a situation similar to Lopez's. While that defendant's direct appeal was pending, the New Mexico SupremeCourt decided that "unlawfulness" was an essential element of criminal sexualcontact of a minor, where it had not previously been recognized as such. Underthe circumstances of that case, the high court applied fundamental-error reviewand reversed the conviction. Id. at 633.

In a post-Santillanes case, State v. Kirby, 930 P.2d 144 (N.M.1996), theNew Mexico Supreme Court was again faced with a similar situation. After thedefendant had been tried and convicted, but before his appeal had been decided,the state appeals court decided that criminal negligence was an element ofinvoluntary manslaughter. The defendant had not, however, objected at trial tothe lack of a criminal negligence element in his jury instructions. Nonetheless,the appeals court applied the intervening decision in the case. The state supremecourt affirmed, holding that omitting an essential element from the juryinstructions was fundamental error subject to correction on appeal despite the lackof preservation at trial. Kirby, 930 P.2d at 145-46. Moreover, the courtexpresslynoted Santillanes' unexplained disregard for this distinction. The Kirbycourtrecognized that "[r]esponsibility for instructing the jury rests solely with the trialcourt. It is the duty of the court, not the defendant, to instruct the jury on theessential elements of a crime. This distinction unfortunately was not drawn in thepreservation proviso in Santillanes, but it is a distinction that we must make inthis case." Id (quotation and citation omitted); see also State v.Acosta, 939 P.2d1081, 1084-86 (N.M. Ct. App. 1997) (following Osborne and Kirby andapplyingfundamental-error principle to reverse conviction for failure to instruct onessential element recognized in decision issued after defendant's trial but beforeconclusion of appeal).(4)

In addition to these New Mexico authorities that seem particularlyapplicable to our case, the following cases represent an illustrative, though notexhaustive, list of cases in which New Mexico courts afforded fundamental-errorreview to issues that were not preserved at trial: State v. Castro, 53 P.3d 413,413-14 (N.M. Ct. App. 2002) (reversing conviction); State v. Cunningham,998 P.2d 176, 178-79 (N.M. 2000); State v. Green, 861 P.2d 954, 960(N.M. 1993) (reversing conviction); State v. Elmquist, 844 P.2d 131, 135(N.M. Ct. App. 1992) (reversing conviction); Ortiz v. State, 749 P.2d 80,82-83(N.M. 1988) (reversing conviction).

Our examination of New Mexico law shows that the procedural default ruleenforced against Lopez to bar even fundamental-error review, was not firmlyestablished and regularly followed either before, at the time of, or after Lopez'strial. Consequently, the procedural default in this case does not preclude federalhabeas review of the merits of Lopez's federal claim. See Romano v. Gibson,239 F.3d 1156, 1170 (10th Cir. 2001), cert. denied, 534 U.S. 1045 (2001). Weare left to exercise our independent judgment in addressing the merits of Lopez'sclaim. See McCracken, 268 F.3d at 975.

III. Merits

"[T]he Due Process Clause of the Fourteenth Amendment forbids a State toconvict a person of a crime without proving the elements of that crime beyond areasonable doubt." Fiore, 531 U.S. at 228-29 (holding conviction based onconduct that statute, properly interpreted, does not prohibit violates due process). The New Mexico Supreme Court has held that the "negligence" element of thechild abuse statute requires proof of criminal negligence instead of ordinarynegligence: "proof that the defendant knew or should have known of the dangerinvolved and acted with a reckless disregard for the safety or health of the child." Santillanes, 849 P.2d at 365. It is clear from the record that the bench trial wasconducted under the assumption, by both the parties and the court, that the Statewas not required to prove intent and that proof beyond a reasonable doubt of civilnegligence would satisfy the State's burden. R., Trial Tape #4, 1, 9, 12. Ourreview of the trial tapes leads us to conclude that the State was not required toprove criminal negligence beyond a reasonable doubt, in violation of Lopez'sright to due process under the Fourteenth Amendment. This conclusion does not,however, end our inquiry. We will grant habeas relief for a constitutionalviolation only if the error was not harmless.

"When a federal judge in a habeas proceeding is in grave doubt aboutwhether a trial error of federal law had 'substantial and injurious effect orinfluence in determining the jury's verdict,' that error is not harmless." O'Neal v.McAninch, 513 U.S. 432, 436 (1995) (quoting Brecht v. Abrahamson, 507U.S.619, 637 (1993)). As we stated, there were repeated references at trial to the factthat Lopez could be convicted upon proof of ordinary civil negligence, that thecrime required no criminal intent. In addition, in the course of stating his findingof guilt, the trial judge told Lopez that it was "very clear . . . it was accidentallydone. I don't think there was any testimony . . . that would indicate youintentionally harmed the child. But I do find you did commit child abusenegligently." R., Trial Tape #12.

Our review of the trial tapes does not convince us that the trial court foundLopez guilty upon a showing of criminal negligence; the evidence of criminalnegligence is decidedly underwhelming.(5) We are left with, at the very least,grave doubt as to whether the court's conclusion that the state was not required toprove criminal negligence had substantial and injurious effect or influence indetermining its verdict. As a result, we cannot say that this error, which clearlyaffects substantial rights, was harmless, and we grant habeas relief. See O'Neal,513 U.S. at 445.

We REVERSE the district court's judgment and grant the writ, with thecondition that the State may retry Lopez within a reasonable time. If retrial is notcommenced within a reasonable time, the State may be subject to further federalproceedings regarding his release. See Cargle, 2003 WL 170427, at *26.

Entered for the Court

David M. Ebel

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. After examining the briefs andappellate record, this panel has determinedunanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument.

2. § 30-6-1(C) states:

Abuse of a child consists of a person knowingly, intentionally ornegligently, and without justifiable cause, causing or permitting a child tobe:

(1) placed in a situation that may endanger the child's life or health;

(2) tortured, cruelly confined or cruelly punished; or

(3) exposed to the inclemency of the weather.

3. This is the same error regardless ofwhether trial is by jury or the court.

4. We stress that retroactivity is not theissue in this case. Santillanes clearlystated that its holding would apply to cases pending on direct review. 849 P.2d at368; see generally State v. Rogers, 602 P.2d 616, 618 (N.M. 1979) (holding thatconcerns of retroactive application arise "only for causes that have beenfinalized," which means that appeal rights have been exhausted). This case isabout claim preservation, i.e., procedural default.

5. On the other hand, we cannot saythat the evidence of criminal negligenceis so deficient that no rational trier of fact could have found criminal negligencebeyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979),which allays any double jeopardy concerns that might arise regarding retrial. SeeCargle, 2003 WL 170427, at *25-26.