                                                                       FILED
                                              United States Court of Appeals
                   UNITED STATES COURT OF APPEALS Tenth Circuit

                               TENTH CIRCUIT                    September 19, 2011
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
 RICHARD G. KIRBY,

             Plaintiff-Appellant,
                                                       No. 11-2082
 v.                                         (D.C. No. 1:08-CV-00887-JB-DJS)
                                                         (D.N.M.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO; JAMES
 JANECKA, Warden,

             Defendants-Appellees.


                                     ORDER


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      This matter is before the court on consideration of Appellant’s petition for

panel rehearing. Pursuant to Federal Rule of Appellate Procedure 40(a)(4)(C), we

GRANT Appellant’s petition for panel rehearing. The previous Order Denying

Certificate of Appealability, Kirby v. Attorney General of New Mexico, No. 11-

2082, 2011 WL 3664281 (10th Cir. Aug. 22, 2011), is vacated and the attached

amended Order Denying Certificate of Appealability is substituted in its place.

                                       Entered for the Court,




                                       ELISABETH A. SHUMAKER, Clerk
                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                September 19, 2011
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 RICHARD G. KIRBY,

              Plaintiff-Appellant,
                                                         No. 11-2082
 v.                                           (D.C. No. 1:08-CV-00887-JB-DJS)
                                                           (D.N.M.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO; JAMES
 JANECKA, Warden,

              Defendants-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner Richard Kirby, a former New Mexico state prisoner proceeding

pro se, 1 seeks a Certificate of Appealability (“COA”) to appeal the district court’s



      *
              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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Kirby is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
denial of: (1) his 28 U.S.C. § 2254 habeas petition; (2) his “Petition for Coram

Nobis,” which the district court construed as a supplemental § 2254 habeas

pleading; and (3) his Federal Rule of Civil Procedure Rule 59(e) motion, which

the district court construed as a second or successive § 2254 habeas petition. Mr.

Kirby also seeks to challenge the district court’s refusal to expand the record or

grant an evidentiary hearing below. Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we deny Mr. Kirby’s request for a COA on all claims and

dismiss his appeal.

                                 BACKGROUND

      Mr. Kirby was convicted by jury in state court of fraud over $250. 2 His

conviction was “based on evidence that [he] hired Loren Collett to design a

website for him, and then failed to pay Mr. Collett.” R., Vol. I, at 25 (State Ct.

Mem. Op., filed May 10, 2005). More specifically, as described by the federal

magistrate judge in this case:



      2
             The New Mexico fraud statute in effect when Mr. Kirby was indicted
and convicted read, in part: “Whoever commits fraud when the value of the
property misappropriated or taken is over two hundred fifty dollars ($250) but not
more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree
felony.” N.M. Stat. Ann. § 30-16-6 (1987); see also R., Vol. I, at 35 (State v.
Kirby, 161 P.3d 883, 884 (N.M. 2007)) (“Defendant was charged with one count
of fraud over $250 but less than $2,500, a fourth degree felony.” (citing N.M.
Stat. Ann. § 30-16-6 (1987))).

       The statute was amended in 2006. Under the amended fraud provision,
fraud over $250 but less than $500 is a misdemeanor, while fraud over $500 but
less than $2,500 is a fourth degree felony. See N.M. Stat. Ann. § 30-16-6 (2006).

                                          3
             Kirby owned a small business. He hired the victim, Loren
             Collett, to design and develop a website and the two entered into
             a website design contract under which Kirby was to pay Collett
             $1,890 for his design services. Collett provided the designs and
             incorporated them into Kirby’s website, but Kirby did not pay
             him. When Collett allegedly changed the password to prevent
             Kirby from utilizing the designs, Kirby, who claims he was the
             “designated administrator” of the website, had the web space
             provider reset the password thereby blocking Collett’s attempts
             to secure the designs pending payment for services.

Id. at 873–74 (Magistrate Judge’s Proposed Findings & Recommended

Disposition, filed Nov. 4, 2010).

      The New Mexico district court sentenced Mr. Kirby to eighteen months’

incarceration, followed by one year of supervised release. The conviction and

sentence were ultimately affirmed by the New Mexico Supreme Court in 2007.

The district attorney then filed a Supplemental Criminal Information asserting

that Mr. Kirby qualified as a habitual offender under N.M. Stat. Ann. § 31-18-

17B, and therefore his sentence should be increased by four years as required by

that provision. See N.M. Stat. Ann. § 31-18-17B (“A person convicted of a

noncapital felony in this state . . . who has incurred two prior felony convictions

that were parts of separate transactions or occurrences or conditional discharge

. . . is a habitual offender and his basic sentence shall be increased by four

years.”). The trial court agreed and issued an amended judgment, which added

four years to Mr. Kirby’s prison sentence, resulting in a sixty-six-month sentence.

Mr. Kirby then appealed the sentence enhancement.



                                          4
      In September 2008, while the sentence appeal was pending in state court,

Mr. Kirby filed a habeas application pursuant to 28 U.S.C. § 2254 in the United

States District Court for the District of New Mexico. In December 2009, Mr.

Kirby filed a “Petition for Coram Nobis” with the federal district court, which

both informed the court that the state courts had rejected his sentence appeal and

asserted several challenges to the sentence enhancement. 3 “[A]s of August 19,

2010, Kirby had completed both the original and enhanced sentences, as well as

the period of parole associated with the fraud conviction.” R., Vol. I, at 869.

      In his § 2254 habeas application, Mr. Kirby raised ten challenges: (1) “the

fraud conviction violates his due process rights because it involved an

unforeseeable interpretation of the law,” id. at 873; (2) his due-process rights

were violated because “the New Mexico fraud statute is vague as applied to him,”

id. at 879; (3) the New Mexico state court lacked subject-matter jurisdiction, id.

at 881; (4) there was insufficient evidence adduced at trial to demonstrate “that

someone other than [Mr. Kirby] owned the website,” a required element under the

state fraud statute, id. at 882–83; (5) the restitution award issued against him was

impermissible, id. at 883–84; (6) his “due process rights were violated by the



      3
             The State initially sought dismissal of the habeas application on the
ground that Mr. Kirby’s appeal of the sentence enhancement was still pending,
and thus his available state-court remedies had not been exhausted. However, Mr.
Kirby’s petition for coram nobis established that his sentence enhancement had
become final with the New Mexico Supreme Court, which satisfied the exhaustion
requirement.

                                          5
prosecution’s failure to disclose that a fact witness, Rob Narvaez, would also be

called upon as an expert to give testimony as to the value of the web page work,”

id. at 884; (7) his trial counsel was ineffective, id. at 885–86; (8) the trial court

impermissibly limited the testimony of two defense witnesses, id. at 886; (9) there

was insufficient evidence adduced at trial “to show that the website had a market

value of over $250,” id. at 887–88; and (10) “his conviction violates due process

principles because a fraud conviction cannot be based on unfulfilled promises or

statements as to future events,” id. at 888. Mr. Kirby also raised several

challenges to the habitual-offender sentence enhancement, and requested that the

district court expand the record.

      Adopting the recommendations of the magistrate judge, the district court

first held that Mr. Kirby’s challenges to the sentence enhancement—raised in his

petition for coram nobis, “which the [district court] construe[d] as a

supplement[al] [habeas] pleading,” id. at 867—were moot because he had

completed his sentence and probation and had not demonstrated any collateral

consequences flowing from the enhancement. The district court also rejected all

of Mr. Kirby’s challenges to his conviction and original sentence, refused to

permit an expansion of the record, and dismissed the initial habeas petition with

prejudice and his supplemental habeas petition (i.e., the coram-nobis petition

regarding the sentence enhancement) without prejudice. The district court

declined to grant Mr. Kirby a COA.


                                            6
      Mr. Kirby then filed a Rule 59(e) motion, which essentially reargued

several of the issues that had been previously raised and rejected in the federal

habeas proceedings. The district court concluded that “Kirby’s motion constitutes

a second or successive petition,” and dismissed it for lack of jurisdiction because

the petition had not been authorized by this court under 28 U.S.C. § 2244(b). Id.

at 946 (Mem. Op. & Order, filed Mar. 25, 2011).

      Mr. Kirby now seeks a COA to appeal the district court’s denial of his

§ 2254 habeas petition, his supplemental § 2254 habeas pleading (i.e., his coram-

nobis petition), and his Rule 59(e) motion. Mr. Kirby also seeks to challenge the

district court’s refusal to expand the record or grant an evidentiary hearing. In

total, he raises nine challenges on appeal: (1) the district court erred in denying

Mr. Kirby’s Rule 59(e) motion; (2) the evidence failed to conform to the

unopposed jury instructions; (3) his conviction violates his due-process rights

because it involved an unforeseeable interpretation of the state fraud statute; (4)

his due-process rights were violated because the state fraud statute is vague as

applied to him; (5) there was insufficient evidence produced at trial to

demonstrate that someone other than Mr. Kirby owned the website; (6) there was

insufficient evidence produced at trial to demonstrate that the website had a value

in excess of $250; (7) his conviction should be vacated because a fraud conviction

cannot be predicated on unfulfilled promises; (8) the district court erred in

holding that the challenges to his sentence enhancement were moot; and (9) the


                                          7
district court erred in refusing to expand the record or hold an evidentiary

hearing. Each issue is addressed in turn.

                                   DISCUSSION

I.    Standard of Review

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)). We will issue a COA only if the applicant “makes a ‘substantial showing

of the denial of a constitutional right.’” Clark, 468 F.3d at 713 (quoting 28

U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show ‘that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). Put differently, “the applicant must show that the district court’s

resolution of the constitutional claim was either ‘debatable or wrong.’” Id.

(quoting Slack, 529 U.S. at 484). Furthermore, when the district court denies

relief to an applicant “on procedural grounds, the applicant faces a double hurdle.

Not only must the applicant make a substantial showing of the denial of a

constitutional right, but he must also show ‘that jurists of reason would find it

debatable . . . whether the district court was correct in its procedural ruling.’”


                                            8
Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting Slack, 529

U.S. at 484).

         To the extent that the state court decided Mr. Kirby’s claims on the merits,

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies,

and we must incorporate AEDPA’s “deferential treatment of state court decisions

. . . into our consideration of [Mr. Kirby’s] request for [a] COA.” Dockins v.

Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, Mr. Kirby is entitled

to federal habeas relief only if he can show that the state court’s adjudication of

the claim:

                (1) resulted in a decision that was contrary to, or involved an
                unreasonable application of, clearly established Federal law, as
                determined by the Supreme Court of the United States; or

                (2) 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.

28 U.S.C. § 2254(d); accord Phillips v. Workman, 604 F.3d 1202, 1209 (10th Cir.

2010).

         When making our determination, “[w]e presume the factual findings of the

state court are correct unless the petitioner rebuts that presumption by ‘clear and

convincing evidence.’” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011)

(quoting 28 U.S.C. § 2254(e)(1)).

II.      Dismissal of Rule 59(e) Motion for Lack of Jurisdiction

         Mr. Kirby’s first issue asks “[w]hether the district court’s characterization


                                            9
of [his] timely Rule 59(e) Motion . . . as a successive petition” and the court’s

consequent dismissal of his motion for lack of jurisdiction constitute error. Aplt.

Combined Opening Br. & Appl. for COA at 4 [hereinafter Aplt. Combined Br.].

To the extent that Mr. Kirby is challenging the district court’s characterization of

his Rule 59(e) motion as a second or successive petition, his position is untenable.

Mr. Kirby’s motion plainly reargues the issues presented to and rejected by the

district court in the habeas proceeding. Cf. United States v. Pedraza, 466 F.3d

932, 933 (10th Cir. 2006) (stating that “a purported Rule 60(b) motion that ‘in

substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction’ is actually a second or successive habeas

petition” (quoting Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006))).

       Furthermore, it is well-settled that “[a] district court does not have

jurisdiction to address the merits of a second or successive . . . § 2254 claim until

this court has granted the required authorization [under§ 2244(b)],” In re Cline,

531 F.3d 1249, 1251 (10th Cir. 2008), and it is undisputed that Mr. Kirby did not

seek (or obtain) such authorization. Consequently, the district court did not err in

dismissing the successive petition for lack of jurisdiction. Reasonable jurists

could not disagree with this outcome.

III.   Jury Instructions and Law of the Case

       Mr. Kirby frames his second issue in the following manner:

             Whether the unopposed jury instruction “This website belonged


                                              10
             to someone other than the defendant” became an element of the
             case and formed the law of the case[,] and because the only
             evidence presented at trial on the status of the ownership of the
             website was from the alleged victim stating “Mr. Kirby was the
             owner and administrator”, the conviction must be vacated?

Aplt. Combined Br. at 5.

      To the extent that Mr. Kirby is raising a sufficiency-of-the-evidence

challenge regarding whether someone other that Mr. Kirby owned the website—a

required element of the fraud charge—we address that contention in Part VI infra.

However, insofar as Mr. Kirby is bringing a challenge related to the jury

instructions or the law-of-the-case doctrine, he did not raise these issues before

the district court. Generally, we “will not consider an issue raised for the first

time on appeal.” Tele-Commc’ns, Inc. v. Comm’r of Internal Revenue, 12 F.3d

1005, 1007 (10th Cir. 1993). Mr. Kirby’s failure to argue for application of the

plain-error standard in this instance “surely marks the end of the road for [this]

argument for reversal not first presented to the district court.” Richison v. Ernest

Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). 4

IV.   Due Process—Fair Warning

      Under Mr. Kirby’s next claim, he argues that his due-process rights were

violated because he was not given fair warning of the statute’s scope. As the



      4
             In fact, Mr. Kirby raises several arguments for the first time on
appeal, and nowhere in his briefing before this court does he assert that the plain-
error standard should apply to these claims. Accordingly, as discussed throughout
this Order, all of Mr. Kirby’s late-blooming challenges are clearly waived.

                                          11
district court framed it, “Kirby attacks his state-court fraud conviction on the

grounds that he was convicted of a new and novel principle of law in violation of

due process that neither the statute nor any prior judicial decision has fairly

disclosed to be within the statute’s scope.” R., Vol. I, at 916 (Mem. Op. & Order

Adopting Magistrate Judge’s Proposed Findings & Recommended Disposition,

filed Dec. 30, 2010) (internal quotation marks omitted). “This ‘novel principle,’

according to Kirby, is the principle that the designer of web pages may be found

to be the owner of the website on which they are displayed.” Id.; see Aplt.

Combined Br. at 11 (arguing that he was not given “fair warning . . . in language

a person of ordinary intelligence would [understand] that a webpage designer

would own the website they designed the pages for”).

      Mr. Kirby presented this challenge in his state post-conviction proceedings.

The New Mexico Supreme Court—“having considering [Mr. Kirby’s] petition,

and being sufficiently advised [on the matter]”—denied his due-process

challenge. R., Vol. I, at 94 (Order, dated Aug. 8, 2008). Applying AEDPA

deference, the district court (adopting the magistrate judge’s recommendation)

held that the New Mexico Supreme Court’s adjudication of this claim was neither

contrary to nor an unreasonable application of Supreme Court precedent. 5 Id. at

      5
             The magistrate judge concluded, and the district court agreed, that
“[t]he New Mexico Supreme Court’s disposition of Kirby’s state habeas petition,
though summary, qualifies as a disposition on the merits and is therefore entitled
to deferential review.” R., Vol. I, at 876 (citing Aycox v. Lytle, 196 F.3d 1174,
                                                                       (continued...)

                                          12
879, 919.

      Before this court, Mr. Kirby has utterly failed to demonstrate that he is

entitled to relief—that is, he has not shown “that reasonable jurists would find the

district court’s assessment of the [due process] claim[] debatable or wrong.”

Slack, 529 U.S. at 484. In his combined brief, Mr. Kirby spends three pages

laying out what he deems to be the applicable legal framework for his due-process

challenge, citing the holdings of both the Supreme Court and the Tenth Circuit.

However, he does not even attempt to explain why he is entitled to relief under

that framework, and he makes no effort to specifically discuss the district court’s

resolution of this claim, much less explain how reasonable jurists could debate the

correctness of that resolution. This is insufficient to carry his burden.

Specifically, Mr. Kirby’s conclusory assertion that his due-process rights were

violated—without any factual foundation or legal analysis to support his

claim—does not entitle him to relief. See, e.g., Walker v. Gibson, 228 F.3d 1217,

      5
        (...continued)
1177–78 (10th Cir. 1999)). In Aycox, we noted that “a summary decision . . . can
constitute an ‘adjudication on the merits’ for purposes of § 2254(d), provided that
the decision was reached on substantive rather than procedural grounds.” 196
F.3d at 1177. This is particularly true where “[t]here is no evidence . . . that the
state court did not consider and reach the merits of [the petitioner’s] claim.” Id.
In this case, the New Mexico Supreme Court’s explicitly stated that it had
“considered” and “be[en] sufficiently advised [on]” the issue before denying it,
R., Vol. I, at 94, and there is no indication that the denial was based on
procedural grounds. Furthermore, Mr. Kirby does not object to the district court’s
characterization of the New Mexico Supreme Court’s decision. Accordingly, the
district court properly applied AEDPA’s deferential standard of review to this
claim.

                                         13
1240 (10th Cir. 2000) (stating that “unsupported and undeveloped [habeas]

issues” do not entitle a petitioner to relief (quoting Moore v. Gibson, 195 F.3d

1152, 1180 n.17 (10th Cir. 1999)) (internal quotation marks omitted)), abrogated

on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001).

Accordingly, he is not entitled to a COA on this issue.

V.     Due Process—Vagueness

       Mr. Kirby brings a second, related due-process challenge, arguing that the

fraud statute is vague as applied to him. More specifically, he argues that the

statute is void for vagueness because neither the statute nor any prior judicial

decision put him on notice that his actions—i.e., preventing Mr. Collett from

accessing the web pages he created and copyrighted—were subject to criminal

liability.

       The district court, accepting the magistrate judge’s recommendation, held

that Mr. Kirby was not entitled to habeas relief on this claim. “Objections to

vagueness under the Due Process Clause rest on the lack of notice, and hence may

be overcome in any specific case where reasonable persons would know that their

conduct is at risk.” R., Vol. I, at 880 (quoting Maynard v. Cartwright, 486 U.S.

356, 361 (1988)) (internal quotation marks omitted). The district court concluded

that the fraud statute—providing that “[f]raud consists of the intentional

misappropriation or taking of anything of value which belongs to another by

means of fraudulent conduct, practices or representations,” N.M. Stat. Ann. § 30-


                                         14
16-6—was not unconstitutionally vague as applied to Mr. Kirby because “[a]

person of ordinary intelligence would understand that the designer of the web

pages has an ownership interest in the website on which the pages are displayed,”

R., Vol. I, at 880. Thus, “[e]ven if Kirby owned the domain name and the

webspace, Collett owned the designs and the copyright to the pages displayed on

the website,” and “[b]y blocking Collett from accessing the website before paying

him for the designs, Kirby should have known that his conduct was at risk for

criminal liability.” Id. at 880–81. Reasonable jurists could not disagree with this

outcome.

      Mr. Kirby first argues that the decision of the New Mexico Supreme Court,

and the recommendation of the federal magistrate judge, were based on a factual

error—viz., “the fallacious premise that [he] had barred access to Collett.” Aplt.

Combined Br. at 15. The district court considered and rejected this argument.

Reasonable jurists could not debate the correctness of this resolution. 6 Assuming,

arguendo, that the factual determination that Mr. Kirby excluded or barred Mr.

      6
             The district court apparently viewed Mr. Kirby’s factual-error
challenge as part and parcel of his request to expand the record. However, we are
constrained to disagree. Before the district court, Mr. Kirby raised his factual-
error argument in the context of his objections to the magistrate judge’s
recommendation. See R., Vol. I, at 890. The argument was not necessarily a
component of his request for leave to expand the record. Moreover, in seeking a
COA from this court, Mr. Kirby is quite clear that the factual-error argument is
part of his vagueness challenge. Although we do not view the factual-error issue
as falling under the umbrella of Mr. Kirby’s request to expand the record, as
noted above, we conclude that the district court’s ultimate resolution of the
challenge could not be debated by reasonable jurists.

                                         15
Collett was incorrect, Mr. Kirby would still not be entitled to relief because that

determination was not “an unreasonable determination of the facts in light of the

evidence presented.” 28 U.S.C. § 2254(d)(2). Section 2254(d)(2) does not

instruct federal courts to determine whether the state court made a correct

determination, but rather whether the state court made an unreasonable

determination. In this case, Mr. Collett stated that “the password [was] changed

from what [he] had changed it to,” and he “did [not] know what the password had

been changed to.” Dist. Ct. Doc. 37-2 at 57 (Aug. 13, 2010). He further stated

that the change “kept [him] from removing all the files [he] had created,” and that

he could “no longer access it” because Mr. Kirby “had taken control of the

website.” Id. Thus, based on this testimony, it cannot be said that the factual

determination that Mr. Kirby excluded or barred Mr. Collett was unreasonable.

The district court correctly rejected Mr. Kirby’s factual-error argument.

      As to the legal merits of the vagueness challenge, we conclude that Mr.

Kirby is not entitled to a COA on this issue. Our holding is based on

substantially the same grounds as articulated by the magistrate judge and adopted

by the district court. In order to succeed under this challenge, Mr. Kirby was

required to demonstrate that the New Mexico fraud statute failed to give him “fair

warning, at the time of [his] conduct . . . , that the act for which [he] now stand[s]

convicted was rendered criminal by the statute.” Bouie v. City of Columbia, 378

U.S. 347, 355 (1964). His challenge can “be overcome . . . [if] reasonable


                                          16
persons would know that their conduct is at risk” under the statute. Maynard, 486

U.S. at 361. As the magistrate judge correctly concluded, and the district court

recognized, “[a] person of ordinary intelligence would understand that the

designer of the web pages has an ownership interest in the website on which the

pages are displayed,” R., Vol. I, at 880—especially when the designer has not

been paid for that design work. Therefore, “[b]y blocking Collett from accessing

the website before paying him for the designs, Kirby should have known that his

conduct was at risk for criminal liability.” Id. at 880–81. Reasonable jurists

could not disagree with this outcome.

      Mr. Kirby argues, as he did before the district court, that “there is a need

for [the] court to locate a published decision[] with fundamentally similar facts[,]

prior to Kirby’s actions[,] to be able to [overcome] the vagueness challenge [and

thereby] allow affirmation of Kirby’s conviction.” Aplt. Combined Br. at 17

(emphasis added). Contrary to Mr. Kirby’s assertion, however, this statement

does not reflect the Supreme Court’s (or Tenth Circuit’s) vagueness

jurisprudence. It appears, as the district court noted, that Mr. Kirby may be

confusing the vagueness doctrine with the doctrine of qualified immunity. To

defeat a claim of qualified immunity, a plaintiff must demonstrate that the

constitutional right allegedly violated “was clearly established at the time of the

alleged unlawful activity,” Swanson v. Town of Mountain View, Colo., 577 F.3d

1196, 1199 (10th Cir. 2009); “[o]rdinarily, in order for the law to be clearly


                                          17
established, there must be a Supreme Court or Tenth Circuit decision on point, or

the clearly established weight of authority from other courts must have found the

law to be as the plaintiff maintains,” Medina v. City & Cnty. of Denver, 960 F.2d

1493, 1498 (10th Cir. 1992) (emphasis added), overruled in part by Williams v.

City & Cnty. of Denver, 99 F.3d 1009 (10th Cir. 1996). The law of qualified

immunity, however, has no bearing on whether Mr. Kirby has successfully

asserted a vagueness challenge. Accordingly, this argument is unavailing. 7 Mr.

Kirby is not entitled to a COA on this claim.

VI.   Sufficiency of the Evidence—Ownership of the Website

      Mr. Kirby next argues that there was insufficient evidence to support his

conviction. More specifically, he argues there was not “any evidence, much less

substantial evidence, produced at trial [to demonstrate] that someone other than

[Mr. Kirby] owned the website.” Aplt. Combined Br. at 18. 8 In assessing a


      7
              Mr. Kirby also briefly argues that we should apply the rule of lenity
in this case and construe the fraud statute in his favor. First, it appears that Mr.
Kirby is raising the rule-of-lenity argument for the first time on appeal. Thus, it
is waived. See supra note 4 and accompanying text. In any event, “the rule of
lenity only applies if, after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute, such that the Court
must simply guess as to what [the legislature] intended.” Barber v. Thomas, 130
S. Ct. 2499, 2508–09 (2010) (citations omitted) (internal quotation marks
omitted). It cannot be said in this case that there is “grievous ambiguity or
uncertainty in the statute.” Id. at 2508. Thus, this argument is unpersuasive.
      8
             As the magistrate judge explained:

             The jury was instructed that to find Kirby guilty of fraud, the
                                                                     (continued...)

                                          18
sufficiency-of-the-evidence challenge, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      The New Mexico Supreme Court reviewed this claim under the Jackson

standard and held that “a rational jury could have concluded that Collett owned

the website and its contents, and that Kirby had therefore committed fraud by

taking property that belonged to someone other than himself.” R., Vol. I, at 883.

This holding was based on evidence presented at trial, which included “the

contract between Collett and Kirby, testimony that Collett owned the computer

programming that made the web pages viewable, and testimony that Kirby

changed the password and locked Collett out of access to his copyrighted pages.”

Id. The district court, accepting the magistrate judge’s recommendation,

concluded that the state court’s “determination was a proper application of

Jackson based on the facts of this case,” and thus it was “neither contrary to nor

an unreasonable application of federal law.” Id. Reasonable jurists could not



      8
          (...continued)
                State had to prove the following three elements beyond a
                reasonable doubt: (1) Kirby intended to “deceive or cheat”
                Collett; (2) Kirby had “obtained a website”; and (3) the website
                belonged to someone other than Kirby.

R., Vol. I, at 874 (emphasis added). Mr. Kirby does not contest the sufficiency of
the evidence as to the first two enumerated elements.

                                           19
disagree with this conclusion.

      Before this court, Mr. Kirby’s only argument is that Mr. Collett testified

that “Mr. Kirby was the owner and administrator” of the website, and that the

state court “did not have the authority to usurp Collett’s testimony that Kirby

owned the website.” Aplt. Combined Br. at 19. As the district court correctly

pointed out, however, a rational jury could have found that the web pages

belonged to Mr. Collett based on the other evidence presented at trial, despite Mr.

Collett’s allegedly conflicting statement. See, e.g., McDaniel v. Brown, 130 S.

Ct. 665, 673 (2010) (“Jackson requires a reviewing court to review the evidence

in the light most favorable to the prosecution. Expressed more fully, this means a

reviewing court faced with a record of historical facts that supports conflicting

inferences must presume . . . that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution.” (citations omitted)

(internal quotation marks omitted)). Accordingly, this argument is without merit,

and Mr. Kirby is not entitled to a COA on this claim.

VII. Sufficiency of the Evidence—Value of the Website

      Mr. Kirby next contends that there was insufficient evidence to demonstrate

that the website had a market value of over $250. 9 He first takes issue with the

      9
            As noted above, the state fraud statute in effect at the time Mr. Kirby
was indicted stated that “[w]hoever commits fraud when the value of the property
misappropriated or taken is over two hundred fifty dollars ($250) but not more
than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.”
                                                                       (continued...)

                                          20
standard of review applied by the district court, which he suggests was an

“unreasonable application” of Supreme Court case law. Aplt. Combined Br. at

19. More specifically, he argues that the district court incorrectly analyzed this

claim under the Jackson framework when it “should have been resolved by asking

whether the . . . error had a substantial and injurious effect or influence in

determining the jury’s verdict.” Id. at 19–20 (quoting Brecht v. Abrahamson, 507

U.S. 619, 623 (1993)) (internal quotation marks omitted).

      It is well-established that “[t]he controlling standard for insufficient

evidence claims asserted by state habeas petitioners was established by the

Supreme Court in Jackson v. Virginia.” Johnson v. Mullin, 505 F.3d 1128, 1134

(10th Cir. 2007); accord Schlup v. Delo, 513 U.S. 298, 330 (1995) (stating that,

on habeas review, “the standard of Jackson v. Virginia . . . governs review of

claims of insufficient evidence”). On the other hand, the standard urged by Mr.

Kirby—articulated in Brecht v. Abrahamson—is a harmless-error standard, which

is only applied once a reviewing court has determined that a constitutional error

has been committed. See, e.g., Welch v. Workman, 639 F.3d 980, 992 (10th Cir.

2011) (en banc) (“If constitutional error is committed, we look to whether ‘the

prejudicial impact of constitutional error in [the] state-court criminal trial’ rises to



      9
       (...continued)
N.M. Stat. Ann. § 30-16-6 (1987) (emphasis added). Thus, the government was
required to prove beyond a reasonable doubt that “the value of the property
misappropriated” was more than $250.

                                           21
the ‘substantial and injurious effect standard set forth in Brecht v. Abrahamson.”

(alteration in original) (emphasis added) (quoting Fry v. Pliler, 551 U.S. 112,

120, 121 n.3 (2007))). Accordingly, Mr. Kirby’s argument regarding the standard

of review is without merit.

      Next, Mr. Kirby argues that there was insufficient evidence to demonstrate

that the website had a value of more than $250 because “[t]he record does not

support any reference to the value of the website [itself],” but “only deals with

suggested value to the work [done] on the web pages.” Aplt. Combined Br. at 20.

The state court rejected this argument, “not[ing] that Kirby had agreed to pay

Collett $1,890 for designing the web pages and that [a witness] testified [that] the

work Collett provided was worth $600 to $700.” R., Vol. I, at 888. The federal

district court concluded that Mr. Kirby was not entitled to habeas relief on this

claim because, “even if there were no evidence as to the value of the website

itself, a rational jury could reasonably infer that the value of the website was at

least equal to the value of the design service.” Id. Thus, the state court’s

adjudication of the matter was not contrary to nor an unreasonable application of

federal law. Reasonable jurists could not disagree with this outcome.

      Mr. Kirby does not even attempt to undermine the evidence presented

regarding the agreement to pay Mr. Collett $1890 or the witness’s $600-to-$700

valuation of the work provided by Mr. Collett. Viewing that evidence in the light

most favorable to the government, a rational jury could have concluded that the


                                          22
value of the website was more than $250. Accordingly, Mr. Kirby is not entitled

to a COA on this claim.

VIII. Fraud Predicated on Promises as to Future Events

      Mr. Kirby next argues that his conviction should be vacated because a fraud

conviction cannot be predicated on unfulfilled promises as to future events—e.g.,

future payment for website services rendered. The state appellate court found this

argument unavailing, noting that although under New Mexico law “an action for

fraud will ordinarily not lie as to a pattern of conduct based on promises that

future events will take place, . . . there are exceptions to this rule,” and that Mr.

Kirby’s actions fell within one of those exceptions recognized under state law. R,

Vol. I, at 27. In this federal habeas proceeding, the district court rejected this

claim, endorsing the magistrate judge’s conclusion that “the issue was a matter of

state law, and not reviewable on habeas.” Id. at 924. Reasonable jurists could

not disagree with this outcome.

      The Supreme Court has made clear that “it is only noncompliance with

federal law that renders a State’s criminal judgment susceptible to collateral

attack in the federal courts.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010). “[I]t

is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions,” id. (alteration in original) (quoting Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991)) (internal quotation marks omitted); yet,

that is precisely what Mr. Kirby asked the district court to do here. He points to


                                          23
no Supreme Court case law supporting his position. Accordingly, he is not

entitled to a COA on this issue.

IX.   Mootness of Sentence-Enhancement Challenges

      Mr. Kirby next asserts that the district court erred in dismissing his

sentence-enhancement challenges—presented in his supplemental habeas pleading

(i.e., coram-nobis petition) 10—as moot. The district court determined that the

sentence-enhancement challenges were moot because Mr. Kirby had completed

his sentence and had not demonstrated any collateral consequences flowing from

the enhancement. Reasonable jurists could not disagree with the district court’s

mootness determination.



      10
              Under our case law, a district court generally “must follow certain
procedures before recharacterizing pro se pleadings as claims under §§ 2254 or
2255.” Davis v. Roberts, 425 F.3d 830, 835 (10th Cir. 2005). However, in this
case, we see no reason to disturb the district court’s reclassification. First, Mr.
Kirby does not argue that the district court was required to follow any such
procedures before recharacterizing his petition as a supplemental habeas pleading.
Additionally, the rule that courts should not sua sponte convert a pro se pleading
into a habeas petition is based “‘largely [on the] concern that a subsequent § 2255
[or § 2254] motion would be considered successive’ and barred under AEDPA
except ‘in very limited circumstances.’” United States v. Torres, 282 F.3d 1241,
1245 (10th Cir. 2002) (quoting United States v. Kelly, 235 F.3d 1238, 1241 (10th
Cir. 2000)). Thus, we have generally applied this rule “in cases where the
recharacterized petition would have been the petitioner’s first § 2255 [or § 2254]
petition,” thereby “prevent[ing] a prisoner from raising a legitimate claim in a
subsequent [habeas] petition.” Id. at 1246. In this case, however, the district
court did not transform Mr. Kirby’s coram-nobis petition into his first habeas
petition. Mr. Kirby had already filed his first § 2254 petition, and the district
court was simply supplementing the claims raised in the initial petition with those
raised in the supplemental pleading. Therefore, we will not revisit the district
court’s conclusion that this petition constituted a supplemental habeas pleading.

                                         24
      Habeas claims will become moot upon a petitioner’s release from custody

unless the petitioner establishes that “sufficient collateral consequences flow from

the underlying judgment and the completed sentence to save the appeal from

mootness.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). On

appeal, Mr. Kirby does not even attempt to defeat the mootness determination by

identifying any collateral consequences of the sentence enhancement. 11 Instead,

he argues that his sentence-enhancement challenge is actually a “challenge to the

jurisdiction of the state court to enhance [his] sentence,” which “is in fact a

challenge to the conviction, not the sentence[] therefore defeating the mootness

determination by the district court.” Aplt. Combined Br. at 25. However, by

acknowledging that he is indeed challenging “the jurisdiction of the state court to

enhance [his] sentence,” id. (emphasis added), Mr. Kirby’s argument defeats

itself; it is clear that the focus of his challenge is the sentence enhancement, not

the underlying conviction. Accordingly, because Mr. Kirby has failed to

demonstrate any collateral consequences flowing from the now-completed term of

the sentence enhancement, the district court did not err in dismissing the

challenges as moot. See Kirby v. Janecka, 379 F. App’x 781, 784 (10th Cir.



      11
              Although collateral consequences are generally presumed in the
context of a challenge to a petitioner’s conviction, that presumption has not—as
the district court noted—been applied in the context of a challenge to a sentence
enhancement, nor does Mr. Kirby argue that it should be applied in that context.
See, e.g., United States v. Hernandez-Baide, 146 F. App’x 302, 304 (10th Cir.
2005).

                                          25
2010) (holding that the petitioner’s “claim is moot because it challenges only the

state court’s enhancement of his already-completed sentence, and [he] has failed

to show any continuing collateral consequences stemming from that

enhancement”); Lucero v. McKune, 340 F. App’x 442, 444 (10th Cir. 2009)

(holding that the petitioner’s release from prison mooted his claim that his

sentences were impermissibly increased because he failed to demonstrate

collateral consequences associated with his previous incarceration). 12

X.    Evidentiary Hearing or Expansion of the Record

      In his final claim, Mr. Kirby argues that the district court erred in

“prohibiting expansion of the record to include evidence discovered and/or

provided after trial and denying an evidentiary hearing on the matter.” Aplt.

Combined Br. at 22. The sole piece of newly discovered evidence that Mr. Kirby

identifies before us in seeking a COA, 13 which he previously sought to present to


      12
             Mr. Kirby also argues that his sentence enhancement violated the
Double Jeopardy Clause of the Fifth Amendment. However, this too is a
challenge to the state court’s authority to impose the sentence enhancement; it is
not an attack on the underlying conviction. Accordingly, Mr. Kirby’s sentence
challenge based upon the Double Jeopardy Clause is likewise moot.
      13
              Although Mr. Kirby may have sought to present additional evidence
to the district court in connection with his request to expand the record or obtain
an evidentiary hearing, he only cites to us the GTFS in arguing that the district
court erred in refusing to grant relief. Thus, he has abandoned any challenge
based on those other pieces of evidence. See, e.g., Tran v. Tr. of State Colleges in
Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening
brief are deemed abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt.
of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997))); cf. United States v.
                                                                       (continued...)

                                         26
the district court, was a “Good-Time-Figuring-Sheet (GTFS) that was generated

by the [New Mexico Department of Corrections] and obtained by [Mr. Kirby]

after the sentence had been enhanced,” which he argues would have supported his

“challeng[e] [to] the jurisdiction of the state court to enhance [his] sentence.” Id.

at 24. That is, this newly discovered evidence was offered to support one of the

sentence-enhancement challenges presented in his supplemental habeas pleading

(i.e., coram nobis petition). As discussed above, however, those claims are moot.

Consequently, Mr. Kirby’s challenge to the district court’s refusal to admit this

newly discovered evidence is likewise moot.

      Even if this issue were not moot, Mr. Kirby would still not be entitled to

relief. Under the Supreme Court’s recent decision in Cullen v. Pinholster, habeas

“review under § 2254(d)(1) is limited to the record that was before the state court

that adjudicated the claim on the merits.” 131 S. Ct. 1388, 1398 (2011). Mr.

Kirby’s request to expand the record or to hold an evidentiary hearing seeks to

place additional evidence before the federal district court that was not part of the

record before the state court. This is no longer permitted under Cullen. Thus,

Mr. Kirby is not entitled to an expansion of the record or an evidentiary hearing.

See Atkins v. Clarke, 642 F.3d 47, 47 (1st Cir. 2011) (“The Supreme Court’s new



      13
        (...continued)
Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (concluding that the applicant
waived his claim on appeal “because he failed to address that claim in either his
application for a COA or his brief on appeal”).

                                          27
decision in Cullen v. Pinholster requires that we reject this appeal from a denial

of a request for an evidentiary hearing in relation to a petition for habeas corpus.”

(citation omitted)); see also Champ v. Zavaras, No. 10-1308, 2011 WL 2411002,

at *9–10 (10th Cir. June 16, 2011) (“Mr. Champ’s requests to expand the record

and to hold an evidentiary hearing to further develop the record aim to place new

evidence before the federal court that was not a part of the state-court record.

Under Cullen, this is no longer permitted.”); cf. Pape v. Thaler, 645 F.3d 281,

288 (5th Cir. 2011) (“Under [Cullen], . . . the district court erred by conducting

the evidentiary hearing and by relying on evidence from that hearing . . . . Pape’s

federal habeas petition . . . must be adjudicated under § 2254(d)(1) and Pape

‘must overcome the limitation of § 2254(d)(1) on the record that was before the

state court.’” (quoting Cullen, 131 S. Ct. at 1400)). Accordingly, we can discern

no error in the district court’s refusal to authorize the expansion of the record or

an evidentiary hearing.

                                   CONCLUSION

      For the reasons set forth above, we DENY Mr. Kirby’s request for a COA

on all claims and DISMISS his appeal.



                                        ENTERED FOR THE COURT


                                        Jerome A. Holmes
                                        Circuit Judge


                                          28
