Mark v. Lecero et al

Filing 44

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Steven C. Yarbrough regarding 12 Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. Objections to PFRD due by 1/30/2019. Add 3 days to the deadl ine 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).) (hm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JUSTIN JOHN MARK,
Petitioner,
v.

Civ. No. 16-454 JAP/SCY

DAVID FAJARDO, and
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Justin John Mark’s Amended Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November
9, 2016. Doc. 12. The Honorable James A. Parker, Senior United States District Judge, referred
this matter to me for entry of proposing findings and a recommended disposition. Doc. 43.
Having considered the parties’ submissions, the record, and the relevant law, I recommend
denying Petitioner’s claims and dismissing this case with prejudice.
I. Factual Background and Procedural History
On November 9, 2012, a jury convicted Petitioner Justin John Mark of first degree
murder, second degree armed robbery, conspiracy to commit armed robbery, and tampering with
evidence. Doc. 17-1, Ex. A. Petitioner’s convictions stemmed from a May 29, 2011 incident at
the home of Kevin Lossiah that resulted in Mr. Lossiah’s death. Petitioner was sentenced to a
term of life imprisonment plus three years. Id.
On January 16, 2013, Petitioner appealed his convictions to the New Mexico Supreme
Court. Doc. 17-1, Ex. B. On April 13, 2015, the New Mexico Supreme Court affirmed
Petitioner’s convictions. Doc. 17-2, Ex. H; see also Doc. 17-2, Ex. I (Mandate issued May 11,
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2015). On July 22, 2015, Petitioner filed a pro se petition for writ of habeas corpus in state
district court. Doc. 17-2, Ex. L. On September 23, 2015, the state district court summarily
dismissed the habeas petition on its merits. Doc. 17-2, Ex. N. On October 9, 2015, Petitioner
filed a petition seeking certiorari review of his state habeas petition. Doc. 17-3, Ex. O. The New
Mexico Supreme Court denied the petition by order on March 10, 2016. Doc. 17-3, Ex. P.
Petitioner filed the instant petition under § 2254 in this Court on May 18, 2016. Doc. 1.
Upon initial review, the Court determined that Petitioner filed a mixed petition containing both
exhausted and unexhausted claims. See Docs. 24, 26. The Court granted Petitioner’s motion to
voluntarily dismiss his unexhausted claim (Doc. 26 at 8), thereby leaving the following two
exhausted claims in this case:
1. Petitioner’s trial counsel was ineffective for failing to investigate Petitioner’s alleged
mental incompetence.
2. Although listed under his ineffective assistance of counsel claim, Petitioner also
argues that it was error that “the doctor that testified [at his trial] was not the doctor
that performed [Mr. Lossiah’s] autopsy.”
See Doc. 26 at 2, 8. The Court ordered Respondents to file a supplemental answer addressing
these exhausted claims and to submit the state court record. See Doc. 26 at 8. The Court also
allowed Petitioner to file a reply to Respondents’ supplemental answer. On September 5, 2017,
Respondents filed their supplemental answer as well as the state court record. Docs. 27, 28.
Petitioner thereafter filed three supplemental reply briefs. Docs. 31, 34, 37. I now consider the
merits of Petitioner’s exhausted claims.

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II. Standard for § 2254 Habeas Petitions
The provisions of 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, 110 Stat. 1214 (AEDPA), govern this case. A petition for habeas
corpus under § 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). The standard is “highly deferential” to state courts, and the
Supreme Court has added that it is “difficult to meet,” as it “demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citing
Harrington v. Richter, 131 S. Ct. 770, 786 (2011)); Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam)); see also Black v. Workman, 682 F.3d 880, 891 (10th Cir. 2012) (“Under
[AEDPA,] a federal court in a § 2254 proceeding must be exquisitely deferential to the state
court’s resolution of the [petitioner’s] claims.”).
The term “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to”
Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in
[those] cases.” Id. at 405. The Supreme Court has interpreted the term “contrary to” as meaning,
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inter alia, “diametrically different” and “opposite in character and nature.” Id. at 406. Therefore,
habeas relief under § 2254 may be granted only where the state court “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases,” or if it “confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003).
Significantly, it is unnecessary for the state court to cite applicable Supreme Court cases or even
to be aware of such cases, “so long as neither the reasoning nor the result of the state-court
decision contradicts [that precedent].” Early v. Packer, 537 U.S. 3, 8 (2002).
A state court decision makes an “unreasonable application” of Supreme Court precedent
if it “identifies the correct governing legal principle from th[e] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
However, “[i]t is not enough that a federal habeas court, in its independent review of the legal
question, is left with a firm conviction . . . that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003) (internal quotation marks and citations omitted). “Rather, that application must be
objectively unreasonable.” Id. at 76.
Pursuant to AEDPA, state court findings of fact are “presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). Accordingly, petitioners challenging a state court’s decision based on an
unreasonable determination of the facts in light of the evidence presented, see § 2254(d)(2), must
show by clear and convincing evidence that the determination was factually erroneous. See
Miller-el v. Dretke, 545 U.S. 231, 240 (2005).
Lastly, where state courts have adjudicated a claim on its merits, federal courts are
limited to reviewing the record as it stood before the state courts. Pinholster, 131 S. Ct. at 1398

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(citing § 2254(d)(1)). That is, evidentiary hearings are not permitted in federal court on claims
that the state courts decided on their merits. Id. at 1398-99; Littlejohn v. Trammell, 704 F.3d 817,
857 (10th Cir. 2013). “‘Adjudicated on the merits’ [means] a decision finally resolving the
parties’ claims, with res judicata effect, that is based on the substance of the claim advanced,
rather than on a procedural, or other ground.” Wilson v. Workman, 577 F.3d 1284, 1308 (10th
Cir. 2009) (internal quotation marks omitted). Thus, summary decisions, even those completely
devoid of any reasoning at all, can constitute decisions “on the merits” for purposes of AEDPA.
Richter, 131 S. Ct. at 784.
III. ANALYSIS
Claim 1: Ineffective Assistance of Counsel
A. Legal Standard
“Claims of ineffective assistance of counsel are evaluated under the two-prong approach
established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).” Simpson v. Carpenter, 912 F.3d 542, 2018 WL 6802636, at *31
(10th Cir. 2018). To establish an ineffective assistance of counsel claim, Petitioner “must show
both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and that
‘the deficient performance prejudiced the defense.’” Id. (internal citations omitted). “When
evaluating whether counsel’s performance was deficient, the question is whether the
representation amounted to incompetence under prevailing professional norms, not whether it
deviated from best practices or most common custom.” Id. (internal citations and quotation
marks omitted). “Judicial review under this standard is highly deferential, and we strongly
presume that an attorney acted in an objectively reasonable manner and that an attorney’s
challenged conduct might have been part of a sound trial strategy.” Id. (internal citations and

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quotation marks omitted). “Furthermore, we must judge the reasonableness of counsel’s
challenged conduct on the specific facts of the case viewed as of the time of counsel’s conduct.”
Id. (internal citations, alterations, and quotation marks omitted).
“Even if counsel performed in a constitutionally deficient manner, [Petitioner] is not
entitled to relief unless he can prove actual prejudice.” Id. To demonstrate prejudice, Petitioner
must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. (internal citation omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. (internal
citation omitted).
“Review under both AEDPA and Strickland is highly deferential, and when the two apply
in tandem, review is doubly so.” Id. at *32 (internal citations omitted). “When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. (internal
citation omitted).
B. Petitioner’s Claim of Ineffective Assistance of Counsel Based on Mental Incompetency
In his § 2254 petition, Petitioner contends that his trial attorney was ineffective for failing
to investigate Petitioner’s alleged mental incompetence at the time of the underlying incident as
well as at the time of his trial. Doc. 12 at 5; see also Doc. 37 at 3. Petitioner asserts that his
attorney “refused to look through [his] background of [] being mentally incompetent”, including
that he had “been determined to be disabled by both the State of New Mexico and federal (SSI)”.
Doc. 12 at 5. Petitioner asserts that he was unable to “assist in his own defense due to his
incompetence.” Id. In his supplemental reply briefs, Petitioner has submitted documents that he
asks this Court to use “as evidence for mental incompetency or mental instability”. See Docs. 31,

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34, 37. In addition, Petitioner alleges in his supplemental replies that he told his attorney he was
receiving social security benefits and going to mental health counseling at the time of the
incident underlying his convictions. Doc. 37 at 3. Petitioner also claims he told his attorney that
he is “slow thinking”, “forget[s] what [he is] talking about”, “cannot speak right” and has
“difficulty thinking”. Id. Lastly, Petitioner asserts that he asked his attorney to review his school
records which allegedly substantiated his mental health issues, but that his attorney apparently
did not do so. Id. Petitioner requests an evidentiary hearing on this issue and asks the Court to
appoint counsel to represent him. Doc. 34 at 1.
Petitioner raised his ineffective assistance of counsel claim for the first time in his state
habeas proceeding. The court rejected Petitioner’s claim on the ground that Petitioner had failed
to show that his attorney’s performance was deficient. The court stated:
Petitioner also claims that trial counsel should have raised the Petitioner’s
competency to stand trial, asserting that he told counsel at the beginning that “I
am mentally impotent.” (See petition page 7.) A defense attorney must have
evidence that raises a reasonable doubt as to a defendant’s competency to stand
trial. The mere assertion by the Petitioner that he was, presumably, incompetent is
not enough. Petitioner’s asserted “slow speaking,” inability to “speak right,” and
receipt of social security disability income do not provide the evidence that would
support a legitimate issue as to Petitioner’s competency. Trial counsel cannot
therefore be said to have performed deficiently for failing to raise the issue.
Doc. 17-2, Ex. N at 2-3. Although the court did not identify Strickland as the controlling legal
authority for Petitioner’s ineffective assistance claim, it applied the Strickland standard and
rejected Petitioner’s ineffective assistance claim on the basis of mental incompetency under
Strickland’s deficient performance prong.
On habeas review, counsel’s “decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. A defendant is mentally competent to stand trial if he
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“has sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding—and [if] he has a rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402 (1960). “Defense counsel is often in the best
position to determine whether a defendant’s competency is questionable.” Bryson v. Ward, 187
F.3d 1193, 1201 (10th Cir. 1999). As Respondents point out, under New Mexico law, a
determination of a defendant’s competency must be made “[w]henever it appears that there is a
question as to” it. Doc. 27 at 13 (citing NMSA 1978, § 31-9-1 (1993)). “When a defendant . . .
asserts the doubtfulness of that competency, the assertions must be substantiated.” State v. Najar,
1986-NMCA-068, ¶ 12, 724 P.2d 249.
I recommend finding that Petitioner is not entitled to federal habeas relief based on his
ineffective assistance claim. First, Petitioner has not shown that counsel was constitutionally
deficient in failing to investigate or raise as an issue his mental competency because, as the state
court noted in its ruling in the state habeas proceeding, the state record does not support
Petitioner’s claimed mental incompetency. In this case, Petitioner claims a history of mental
illness. Further, he alleges that he is of low intelligence, “slow thinking”, “forget[s] what he is
talking about”, “cannot speak right”, has “difficulty thinking”, and that he received disability
benefits. But even if his allegations are true, Petitioner’s history of mental illness, speech and
learning disabilities, and receipt of disability benefits does not equate to mental incompetency at
the time of his trial. He offers nothing—apart from his conclusory assertions as to his mental
incompetence at the time of the underlying incident and at trial—that he lacked mental
competency during his criminal proceedings. See Lafferty v. Cook, 949 F.2d 1546, 1561 (10th
Cir. 1991) (“[N]ot all people who have a mental problem are rendered by it legally
incompetent.”); see United States v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000) (the Tenth

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Circuit has long recognized that a defendant is not necessarily incompetent simply because he
suffers from a mental disorder); Miles v. Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995)
(“Petitioner’s history of mental problems, low intelligence, psychotropic medication, and
substance abuse do not establish that he was incompetent to plea.”).
Nothing indicates that Petitioner was incompetent to stand trial under the test defined in
Dusky. Indeed, nothing in the record indicates that Petitioner was anything other than lucid at the
time of the trial, or that he did not understand the charges he was facing. In light of the
circumstances, I find that it was not completely unreasonable that counsel did not investigate
Petitioner’s competency to stand trial.
In the course of briefing for his § 2254 petition, Petitioner now has submitted documents
allegedly concerning his mental health issues. The documents consist largely of school records,
individual educational plans, and social security disability statements. The documents, however,
are not chronologically pertinent because they pertain to years before the underlying incident and
the criminal proceedings. In addition, none of the documents include any form of competency
determination. Lastly, these documents were not part of the state court record, and it is wellestablished that this Court’s review is limited to the record that was before the state court when it
adjudicated Petitioner’s ineffective assistance of counsel claim. See Pinholster, 131 S.Ct. at
1398. In other words, “review under § 2254(d)(1) focuses on what a state court knew and did.”
Id. at 1399. Thus, these documents do not change my recommendation.
I find that the state court’s decision to deny habeas relief based on Petitioner’s ineffective
assistance claim does not contravene or unreasonably apply clearly established federal law. Nor
is it based on an unreasonable determination of the facts in light of the evidence presented.

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Accordingly, I recommend concluding that Petitioner’s ineffective assistance claim based on his
mental health is meritless and does not provide grounds for federal habeas relief.
Claim 2: Testimony of Forensic Pathologist
Petitioner argues that the trial court’s admission of forensic pathologist Dr. Ross
Zumwalt’s testimony violated his Sixth Amendment right of confrontation. See Doc. 12 at 5.
Petitioner specifically argues that it was error that “the doctor that testified [at his trial] was not
the doctor that performed [Mr. Lossiah’s] autopsy.” Id.
A. Legal Standard
The Sixth Amendment of the United States Constitution guarantees an individual accused
of a criminal offense the right “to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The “main and essential” purpose of the Sixth Amendment’s Confrontation Clause
“is to secure for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall,
475 U.S. 673, 678 (1986) (citation omitted and emphasis removed). In Crawford v. Washington,
541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause bars the admission of
“testimonial hearsay” unless the declarant is shown to be unavailable to testify and the defendant
had an earlier opportunity to cross-examine the declarant. Crawford, 541 U.S. at 51-54. A
defendant’s confrontation rights are implicated by the admission of testimonial statements
against the defendant, however, only when they are admitted to establish the truth of the matter
asserted in the statement. See id. at n.9 (explaining that the Confrontation Clause “does not bar
the use of testimonial statements for purposes other than establishing the truth of the matter
asserted.”).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New
Mexico, 564 U.S. 647 (2011), the Supreme Court ruled that scientific reports were considered

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“testimonial hearsay” and could not be used as substantive evidence against a defendant unless
the analyst who prepared and certified the report was subject to confrontation. In each case, the
report at issue “contain[ed] a testimonial certification, made in order to prove a fact at a criminal
trial.” Bullcoming, 564 U.S. at 657. In Williams v. Illinois, however, the Supreme Court
confirmed that the Confrontation Clause is not implicated when one expert gives an opinion
which uses, as “basis evidence,” an out-of-court “testimonial statement” which has not been
admitted into evidence and subject to cross-examination. Williams v. Illinois, 132 S. Ct 2221,
2234-44 (2012).
B. Petitioner’s Claim
During Petitioner’s trial, the autopsy report of Mr. Lossiah was not introduced into
evidence. My review of Dr. Zumwalt’s trial testimony is consistent with the New Mexico
Supreme Court’s summary of his testimony in its decision:
The district court permitted Dr. Zumwalt to testify and accepted him as an expert
in forensic pathology. Dr. Zumwalt testified that “he reviewed the information . . .
surrounding the circumstances of the death and reviewed the autopsy
photographs” to formulate his opinions regarding the cause and manner of
Lossiah’s death. Dr. Zumwalt referred to various photographs during his
testimony, and the district court admitted these photographs into evidence without
objection. Dr. Zumwalt testified that Lossiah sustained fractures of the skull,
bleeding in and around the brain, and brain swelling. Dr. Zumwalt concluded that
Lossiah died from blunt force injuries to the head. Dr. Zumwalt also testified that
injuries on the left side of Lossiah’s chest were consistent with a series of impacts
from a long, narrow object, like a rod, and that Lossiah had a bruised forearm and
a deformed index finger, which may have been broken.
Doc. 17-2 at 7.
After setting forth the rule in Crawford, as applied by the state court in previous
decisions, the New Mexico Supreme Court held that Petitioner’s confrontation rights were not
violated because “the State did not introduce any testimonial, out-of court statements against
Defendant. Dr. Zumwalt relied on raw data, the autopsy photographs, to arrive at his own
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independent opinions about Lossiah’s injuries and the cause and manner of Lossiah’s death. Dr.
Zumwalt did not repeat any subjective observations made by the pathologist who performed the
autopsy. Although Dr. Zumwalt admitted on cross-examination that he reviewed ‘the entire file’
in preparation for his testimony, he neither referred to nor quoted from the autopsy report while
testifying, and the State did not proffer the autopsy report as evidence.” Doc. 17-2, Ex. H at 9-10.
In his § 2254 petition, Petitioner makes no more than a conclusory assertion that it was
error for the trial court to admit Dr. Zumwalt’s testimony because he did not perform Lossiah’s
autopsy. I disagree and recommend finding that the New Mexico Supreme Court ruled in
accordance with clearly established federal law when it held that Dr. Zumwalt’s testimony did
not violate Petitioner’s rights under the Confrontation Clause. The trial court did not contravene
or unreasonably apply clearly established federal law when it allowed Dr. Zumwalt to testify.
Furthermore, because Petitioner does not challenge any of the state court’s factual
determinations surrounding Dr. Zumwalt’s testimony, there is no basis for this Court to find that
the state court’s decision is based on an unreasonable determination of the facts. In sum, I
recommend deferring to the state court’s ruling and finding that Petitioner is not entitled to
habeas relief on this claim.
IV. RECOMMENDATION
For the reasons set forth herein, I recommend that the Court deny Petitioner’s § 2254
petition and dismiss this action with prejudice. I further recommend that the Court deny a
certificate of appealability.
____________________________________
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 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
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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. If no
objections are filed, no appellate review will be allowed.

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