Anaya v. Hatch et al

Filing 28

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar as to 1 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus. I RECOMMEND that Petitioner be given the option to withdraw his unexhausted claims and proc eed on the remaining claims. Objections to PF&RD are due by October 20, 2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (sg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ARTURO ANAYA,
Petitioner,
v.

No. 16-cv-0331 RJ/SMV

TIMOTHY HATCH and ATTORNEY GENERAL
OF THE STATE OF NEW MEXICO,
Respondents.
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before me on Petitioner Arturo Anaya’s Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody, filed April 22, 2016. [Doc. 1].
Respondents filed an answer on July 17, 2017. [Doc. 19]. Anaya replied on July 27, 2017.1
[Docs. 21, 22]. The Honorable Robert A. Junell, Senior United States District Judge, referred
this matter to me for analysis and a recommended disposition. [Doc. 27]. Having considered the
parties’ submissions, the record, and the relevant law, and being otherwise fully advised in the
premises, I find that Anaya has alleged both exhausted and unexhausted claims and I recommend
that he be given the opportunity to withdraw the unexhausted claims and proceed with the
exhausted claims.2

1

Anaya has filed numerous other documents in support of his petition. See [Docs. 4, 6–7, 14–18]. I have reviewed
all his submissions.
2
Anaya has also filed a motion [Doc. 25] and second motion [Doc. 27] for a new trial. I will not recommend rulings
on those motions at this time.

Background
On May 23, 2013, Anaya was convicted by a jury in the First Judicial District Court of
New Mexico on two counts of murder in the first degree, one count of aggravated burglary, and
two counts of intimidation of a witness. [Doc. 19-1] at 1–2. The charges stemmed from an
altercation during which Anaya fatally shot two occupants of a trailer on his property following a
dispute over rent. See [Doc. 19] at 2. Judgement was entered on June 17, 2013. [Doc. 19-1]
at 1–7. He was sentenced to two terms of life imprisonment for the murder convictions and three
years for each intimidation-of-a-witness conviction, to run consecutively.3 Id. at 2–3.
Anaya, through counsel, appealed his conviction. [Doc. 19-1] at 9. He alleged five
errors on appeal: (1) the trial judge’s violation of Anaya’s statutory right to peremptorily excuse
his assigned judge; (2) ineffective assistance of counsel based on defense counsel’s failure to
timely excuse the assigned judge; (3) insufficiency of the evidence to sustain the conviction for
aggravated burglary; (4) the trial judge’s failure to give a jury instruction on self-defense; and
(5) cumulative error. [Doc. 19-2] at 3–4; [Doc. 19-1] at 32–74 (Anaya’s appellate brief-inchief).

Exercising jurisdiction pursuant to Rule 12-102(A)(1) NMRA,4 the New Mexico

Supreme Court affirmed his conviction on May 4, 2105. As to the ineffective-assistance claim,
the Court found that only an evidentiary hearing in a post-conviction habeas proceeding would
supply the requisite facts, if any, supporting the claim. [Doc. 19-2] at 8–9. As to the other four
grounds, the Court ruled against Anaya on the merits. See id. at 23–40.
3

Because his burglary conviction was used as a predicate for the State’s felony murder theory, his sentence on that
conviction was subsumed into the life imprisonment sentences. [Doc. 19-1] at 2–3.
4
Rule 12-102(A)(1) provides that “appeals from the district courts in which a sentence of death or life imprisonment
has been imposed” shall be taken to the New Mexico Supreme Court.

2

Proceeding pro se, Anaya filed a state habeas corpus petition on June 5, 2015.
[Doc. 19-2] at 43–49.

His petition was summarily dismissed by the district court on

September 18, 2015. Id. at 62–64. The court construed his habeas petition as challenging the
sufficiency of the evidence of his aggravated burglary conviction on the basis that his entry into
the victims’ trailer was lawful because he owned the property. Id. at 62. The court found that it
was precluded from addressing that claim because it had already been raised and rejected by the
Supreme Court on direct appeal. Id. The court found no fundamental error or lack of an
adequate record that would permit the court to consider the claim. Id. at 62–63. While Anaya
stated in the instant petition that he filed a writ of certiorari to the New Mexico Supreme Court,
which was denied, it appears that he did not file any such petition.5
In the instant petition, filed on April 22, 2016, and in a number of additional supporting
documents, Anaya raises several grounds for relief. He raises claims relating to the allegedly
false testimony of the State’s witnesses, including, most clearly, a claim for ineffective assistance
of counsel on the basis of his counsel’s failure to discredit the State’s witnesses. [Doc. 1] at 5, 7;
[Docs. 16–18]. He claims he is “innocent” and that his murder convictions should be overturned
because he was not the initial aggressor in the altercation but instead was acting in self-defense.
E.g., [Doc. 4] at 1–2; [Doc. 21] at 1. He claims that he was not present unlawfully in the
victims’ trailer, effectively arguing there was not sufficient evidence to support his aggravated
burglary conviction. [Doc. 21] at 1. Finally, he claims the trial judge erred in striking his

5

See [Doc. 19-2] at 65–72 (docket sheet for criminal case, reflecting no writ of certiorari). Respondents add that
that their telephonic inquiry to a state Supreme Court representative further reflected that no petition for writ of
certiorari was filed. [Doc. 19] at 3.

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peremptory excusal of the assigned judge, and, alternately, that his counsel’s failure to timely
excuse the assigned judge constituted ineffective assistance of counsel. [Doc. 22].
Respondents construe Anaya’s petition as raising a single ground for relief: ineffective
assistance of counsel for his counsel’s failure to discredit the false testimony of the State’s
witnesses. [Doc. 19] at 4. Respondents contend that Anaya failed to exhaust this claim and
request that his petition be denied on that ground. Id. at 5–8. In the alternative, they argue that
Anaya fails to show that his counsel’s representation was constitutionally inadequate. Id. at 8–
12.
Legal Standards
Petitions Under 28 U.S.C. § 2254
A petition for habeas corpus under 28 U.S.C. § 2254 attacks the constitutionality of a
state prisoner’s conviction and continued detention. A federal court cannot grant habeas relief
pursuant to § 2254(d) with respect to any claim adjudicated on the merits by a state court unless
the petitioner’s state court proceeding:
(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.
§ 2254(d). “Even if a state court resolves a claim in a summary fashion with little or no
reasoning, [federal courts] owe deference to the state court’s result.” Paine v. Massie, 339 F.3d
1194, 1198 (10th Cir. 2003). This standard is “highly deferential” to state courts, and the
Supreme Court has noted that it is “difficult to meet,” as it requires federal courts to give state
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court decisions the benefit of the doubt. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(citing Harrington v. Richter, 562 U.S. 86, 101 (2011); Woodford v. Viscotti, 537 U.S. 19, 24
(2002) (per curiam)); see also Black v. Workman, 682 F.3d 880, 891 (10th Cir. 2012) (“[A]
federal court in a § 2254 proceeding must be exquisitely deferential to the state court’s resolution
of the [petitioner’s] claims.”).
The Exhaustion Requirement
Exhaustion of state court remedies is a “threshold barrier[]” to a petitioner seeking relief
under § 2254. Day v. McDonough, 547 U.S. 198, 205 (2006). Pursuant to § 2254(b)(1), federal
habeas relief is not available unless “it appears that[] the applicant has exhausted the remedies
available in the courts of the State; or that there is an absence of available State corrective
process; or circumstances exist that render such process ineffective to protect the rights of the
applicant.” The petitioner bears the burden of showing that he has exhausted all available state
remedies. McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009).
The exhaustion requirement is satisfied when the petitioner’s federal claims have been
“fairly present[ed]” to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). The state
courts must be given “the opportunity to pass upon and correct alleged violations of [their]
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal
quotation marks omitted).

Fair presentation requires that the federal claims be presented

properly “to the highest state court, either by direct review of the conviction or in a
postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994);

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see also Byrd v. Workman, 645 F.3d 1159, 1164 n.7 (10th Cir. 2011) (noting that a state’s
highest court must be presented with a claim before exhaustion occurs).
Moreover, the “substance of a federal habeas corpus claim” must have been presented to
the state courts to satisfy the exhaustion requirement. Picard, 404 U.S. at 278. “If state courts
are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must
surely be alerted to the fact that the prisoners are asserting claims under the United States
Constitution.” Duncan, 513 U.S. at 365. While a petitioner need not cite “book and verse” to
the Constitution or any particular source of federal jurisprudence, it is insufficient for a petition
to have only presented the state courts with the facts necessary to state a claim for relief.
Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997); see also Gray v. Netherland, 518 U.S.
152, 162–63 (1996).

A claim for relief must “include reference to a specific federal

constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”
Gray, 518 U.S. at 162–63.
The exhaustion requirement should not “be overlooked lightly.” Hernandez v. Starbuck,
69 F.3d 1089, 1092 (10th Cir. 1995). It is “principally designed to protect the state courts’ role
in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v.
Lundy, 455 U.S. 509, 518 (1982).
“Mixed” Petitions
Some § 2254 petitions are “mixed”; that is, they contain both exhausted and unexhausted
claims. When confronted with a mixed petition, the court may not dispose of it in a “hybrid
fashion” by dismissing the unexhausted claims and adjudicating the exhausted claims on the
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merits. Wood v. McCollum, 833 F.3d 1272, 1274 (10th Cir. 2016). Instead, when a court is
presented with a mixed petition, it may do one of four things:
(1) dismiss the mixed petition in its entirety; (2) stay the petition
and hold it in abeyance while the petitioner returns to state court to
raise his unexhausted claims; (3) permit the petitioner to dismiss
the unexhausted claims and proceed with the exhausted claims; or
(4) ignore the exhaustion requirement altogether and deny the
petition on the merits if none of the petitioner’s claims has any
merit.
Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009) (internal citations omitted).
Analysis
I find that Anaya has asserted a mix of exhausted and non-exhausted claims. Liberally
construed, Anaya has alleged errors relating to the trial judge striking his peremptory excusal,
ineffective assistance of counsel with respect to the peremptory excusal, and the sufficiency of
the evidence of his unlawful presence in the victims’ trailer. See [Docs. 21, 22]. Anaya
presented these claims, through counsel, to the New Mexico Supreme Court on direct appeal.
[Doc. 19-2] at 3–4. Because they were fairly presented to the highest state court in New Mexico,
these claims are exhausted. See Dever, 36 F.3d at 1534. Anaya also asserts claims related to his
alleged “innocence” based on the theory that he was acting out of self-defense. To the extent he
alleges error stemming from the trial court’s failure to give a jury instruction on self-defense,
such claim is exhausted because it was presented to the Supreme Court on direct appeal.
[Doc. 19-2] at 3–4.
Anaya’s petition also, however, alleges additional claims beyond those exhausted through
his direct appeal. He asserts errors relating to the false testimony of the State’s witnesses, and he
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alleges ineffective assistance of counsel based on his counsel’s failure to discredit those
witnesses. See [Doc. 1] at 5, 7. He also appears to allege errors relating to his claim of selfdefense beyond the claim that he was improperly denied a jury instruction on self-defense.
See [Docs. 4, 21]. Except as to the failure to provide a jury instruction on self-defense, as
discussed above, Anaya did not raise these claims on direct appeal or in his state habeas petition.
These claims were never fairly presented to the state courts and remain unexhausted. In short,
the claims that were raised by his counsel on direct appeal are exhausted as to the instant § 2254
petition, and the claims that were not raised by his counsel on direct appeal are unexhausted.
Because Anaya has asserted a mix of exhausted and unexhausted claims, the Court may
either (1) dismiss the petition entirely, (2) stay the petition while Anaya raises his unexhausted
claims in state court, (3) permit Anaya to dismiss the unexhausted claims and proceed with the
exhausted claims, or (4) ignore the exhaustion requirement and deny the petition on the merits if
all of his claims are without merit. See Fairchild, 579 F.3d at 1156.
I find that a stay of the proceedings would not be appropriate in this case. A stay
allowing a petitioner to return to state court to exhaust his previously unexhausted claims should
be made available only where the petitioner can (1) show good cause for failing to present the
claims before the state court in the first instance, and (2) show that his unexhausted claims are
not “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005). Nothing in the pleadings
before the Court addresses what cause, if any, exists for the delay in bringing the unexhausted
claims before the state courts. A stay thus would not be appropriate here. I likewise find that it
would be ill-advised to ignore the exhaustion requirement and deny the unexhausted claims on
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the merits if the claims lack merit. See, e.g., Corral v. N.M. Attorney Gen., 2017 WL 2265148,
at *2–3 (D.N.M. Feb. 28, 2017) (unpublished) (discussing the principles underlying the
exhaustion requirement).
While I could recommend that the petition be dismissed in its entirety to allow Anaya to
assert his unexhausted claims in state court, in the interest of fairness I recommend that he be
given the opportunity to withdraw the as-yet unexhausted claims: the claims relating to the
allegedly false testimony of the State’s witnesses, the claim for ineffective assistance of counsel
as to witness credibility, and the claims related to his “innocence” and theory of self-defense
(except as to the trial court’s failure to give a jury instruction on self-defense). I therefore
recommend that Anaya be granted 30 days within which to withdraw his unexhausted claims by
filing a one-page document certifying his desire to do so.
I caution Anaya that, should he choose to withdraw the unexhausted claims, he will likely
lose the opportunity to present those unexhausted claims to a federal court at a later date.
See 28 U.S.C. § 2244(b)(1); Tapia v. Lemaster, 172 F.3d 1193, 1195 (10th Cir. 1999) (petitioner
who elects to proceed only on exhausted claims is deemed to have abandoned all unexhausted
claims and those claims may not be re-brought in federal court unless the petitioner can meet the
requirements for filing a successive petition). I further caution Anaya that if he declines to
withdraw the unexhausted claims, this action will be dismissed in its entirety. The federal
habeas one-year limitation period is still in effect as to all of his claims, even the exhausted
claims. See § 2244(d). See generally Salazar v. Lemaster, 130 F. App’x 208, 210 (10th Cir.
2005) (dismissing a § 2254 petition as untimely under similar circumstances). And, by the
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State’s calculation, see [Doc. 19] at 7–8, that one-year period has already run. Assuming the
State’s calculation is correct, if this action is dismissed to allow Anaya to exhaust all his claims
in state court, he will be time-barred from later bringing them in federal court.
IT IS THEREFORE RECOMMENDED that, if these proposed findings are adopted,
Petitioner Arturo Anaya be permitted to file, within 30 days of the District Judge’s Order
adopting these findings, a one-page document certifying that he has elected to withdraw his
unexhausted claims.
IT IS FURTHER RECOMMENDED that, if these proposed findings are adopted and
Petitioner Arturo Anaya fails to file a certificate of withdrawal of the unexhausted claims within
30 days of the District Judge’s Order, the petition be dismissed.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition, they may
file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any written objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. See D.N.M.LR-Civ. 10.1. If no objections are
filed, no appellate review will be allowed.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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