Musacco v. Franco et al
Filing
57
ORDER ADOPTING 55 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez re 1 Petition for 2254 Relief filed by Beau James Musacco. Wherefore, IT IS HEREBY ORDERED that the Magistrate Judge's Proposed Findings and Recommended Disposition (doc. 55 ) is ADOPTED. Petitioner's claims based on evidentiary rulings, ineffective assistance of trial counsel, and sufficiency of evidence are DISMISSED with prejudice. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BEAU JAMES MUSACCO,
Petitioner,
v.
Civ. No. 14‐683 MV/GBW
GERMAN FRANCO, Warden, and
THE ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO,
Respondents.
ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
This matter comes before the Court on Petitioner’s motion for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (doc. 1). Petitioner filed an amended petition on
August 22, 2014, in which he identified several grounds for relief. See doc. 3. First,
Petitioner raised numerous claims of ineffective assistance of trial counsel. Id. He
claimed his trial counsel provided ineffective assistance of counsel by failing to: (i)
present a meritorious defense, (ii) present expert testimony, (iii) move to dismiss on
speedy trial grounds, and (iv) move for change of venue. Id. Second, Petitioner argued
that the New Mexico Supreme Court erred in rejecting his appeal on the following
issues: (i) Officer Carter’s warrantless entry into the Econo Lodge Room 216, (ii) the
warrantless swabbing of Petitioner’s hands; (iii) the admission into evidence of the
boots taken from Room 216 despite the allegedly inadequate chain of custody; and (iv)
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the alleged insufficiency of the evidence. Id. Finally, Petitioner claimed that the state
district judge erred in denying the state habeas petition without holding an evidentiary
hearing. Id.
The Magistrate Judge filed his Proposed Findings and Recommended
Disposition (PFRD) on August 3, 2016. Doc. 55. He recommended dismissal with
prejudice of all claims brought by Petitioner, explaining that Petitioner’s claims based
on evidentiary rulings “should be dismissed because they are not cognizable in federal
habeas proceedings.” See doc. 55 at 1, 10‐12, 35. The Magistrate Judge found that
Petitioner’s claims based upon the ineffective assistance of trial counsel and sufficiency
of evidence should be dismissed “because the state court’s rejection of them was not
contrary to, or an unreasonable application of, clearly established Federal law.” Id. at
22‐35. With regard to Petitioner’s claim based on ineffective assistance of counsel for
failure to call Dr. Wright, the Magistrate Judge recommended dismissal upon de novo
review because “Petitioner has not demonstrated prejudice under Strickland.” Id. at 27‐
28, 34‐35. Finally, the Magistrate Judge concluded that Petitioner’s argument regarding
the ineffective assistance of state habeas counsel is not properly raised in the instant
Petition. Id. at 5‐10, 35.
Neither party has filed objections to the PFRD, and, upon review of the record, I
concur with the Magistrate Judge’s findings and recommendations. The Court finds
that Petitioner’s argument regarding the ineffective assistance of state habeas counsel is
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not raised in the instant Petition. With respect to the claims that are raised, they are
subject to dismissal with prejudice.
Wherefore, IT IS HEREBY ORDERED that the Magistrate Judge’s Proposed
Findings and Recommended Disposition (doc. 55) is ADOPTED. Petitioner’s claims
based on evidentiary rulings, ineffective assistance of trial counsel, and sufficiency of
evidence are DISMISSED with prejudice.
________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE
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