Gilbert Nieto v. George Sullivan

HOLLOWAY, Chief Judge.

Petitioner-appellant Gilbert Nieto appeals from the district court’s order dismissing his petition for a writ of habeas corpus and adopting the findings and recommendations of the Magistrate. Petitioner was convicted in a New Mexico state district court, following a jury trial, of the assault, battery and armed robbery of Francisco Rodriguez. We affirm.

I

THE FACTUAL AND PROCEDURAL BACKGROUND

On the night of January 13, 1983, Francisco Rodriguez and his cousin, Mauricio Carreon, were playing video games at a local 7-Eleven store in Albuquerque. As the two left the store,…