Mark v. Lecero et al

Filing 49

ORDER by Senior District Judge James A. Parker Overruling Petitioner's Objections 45 and Adopting Magistrate Judge's Proposed Findings and Recommended Disposition 44 filed by Justin John Mark; Final Judgment will be entered. (bap)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUSTIN JOHN MARK,
Petitioner,

v.

NO. 16-CV-454 JAP/SY

DAVID FAJARDO, and
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents.

ORDER OVERRULING PETITIONER’S OBJECTIONS
AND ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
On January 25, 2019, Petitioner Justin John Mark filed OBJECTIONS (Doc. 45) to the
Magistrate Judge’s PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (Doc. 44)
(PFRD) entered on January 16, 2019. On January 31, 2019, Petitioner filed two supplements and
one letter to his objections.1 After de novo review, the Court will overrule the Objections and
adopt the PFRD.
I.

BACKGROUND
A jury convicted Petitioner of first-degree murder for the death of Kevin Lossiah and of

one count of tampering with evidence. At the sentencing hearing, three of the victim’s relatives
testified, and Petitioner’s sister testified. Resp’t. Suppl. (Doc. 28-5), Tr. at pp. 55-57. Petitioner’s

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See Supplement (Doc. 46); Supplement (Doc. 47); Letter (Doc. 48). Hereinafter, the Objections, the Supplements and the Letter
will be referred to jointly as “Objections.”

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attorney argued that when sentencing, the state court should consider Petitioner’s alcoholism and
his difficult childhood as mitigating factors. Id. at 57. After stating that it had considered the
presentence report and the testimony, the state court sentenced Petitioner to 30 years (life) for the
first offense and for the second offense, a consecutive sentence of 3 years. Resp’t App. (Doc. 171), Ex. A at 1.
Petitioner pursued a direct appeal, which the New Mexico Supreme Court denied. On
July 1, 2015, Petitioner filed a Motion for Reconsideration of his Sentence. In that motion, for
the first time, Petitioner raised his mental abilities. Petitioner stated that he was “mentally
impotent; I get pay from social security disability income.” Resp’t App. (Doc 17-2), Ex. J. at 33.
On July 8, 2015, the state district court denied this Motion, stating that the Motion was untimely.
Id., Ex. K at 35. On July 22, 2015, Petitioner filed a state habeas petition. Id., Ex. L. at 36. As
grounds, Petitioner stated, (1) sufficiency of the evidence, (2) ineffective assistance of counsel,
and (3) suppression of evidence.
As provided in NM Rule 5-802, the Post-Conviction Habeas Unit Law Office of the
Public Defender examined the state petition. The public defender determined that the state
petition did not state a claim and recommended that the state court dismiss it. Id. at 55. On
September 23, 2015, the state court dismissed the petition. Id., Ex. N. at 88.
On November 9, 2016, Petitioner filed a federal habeas petition asserting three claims: 1)
a violation of his Confrontation Clause rights when a forensic pathologist who did not conduct
the autopsy of his victim testified about the victim’s death; 2) a violation of his right to effective
assistance of counsel when his attorney did not investigate Petitioner’s competence or comply
with Petitioner’s instructions; and 3) a violation of his liberty rights based on his actual
innocence. On June 26, 2017, Magistrate Judge Yarbrough entered proposed findings that

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Petitioner’s claim of actual innocence had not been exhausted and recommending that the Court
permit Petitioner to dismiss the unexhausted claim and proceed on the exhausted ones. Proposed
Findings and Recommended Disposition (Doc. 24) (PFRD I). Petitioner submitted a letter to the
Court stating that he wished to drop his unexhausted claim. Letter (Doc. 22). On August 3, 2017,
United States District Court Judge Junell adopted Magistrate Judge Yarbrough’s PFRD I. Order
(Doc. 26).
On January 1, 2019, Magistrate Judge Yarbrough entered a second PFRD. (Doc. 44) The
PFRD recommends that the Court find that the Petitioner is not entitled to habeas relief.
Petitioner filed the Objections. See (Doc. 45), (Doc 46), (Doc 47) (Doc. 48). In his Objections,
Petitioner restates his Confrontation Clause claim and his ineffective assistance of counsel at trial
claim and adds a new claim of ineffective assistance of counsel at sentencing.
II.

STANDARD OF REVIEW
When a party files written objections to a magistrate judge’s proposed findings and

recommendations, the district court must conduct de novo review “of those portions . . . to which
objection is made.” 28 U.S.C. § § 636(b)(1)(C). “De novo review requires the district court to
consider relevant evidence of record and not merely review the magistrate judge’s
recommendation.” Griego v. Padilla (In re Griego), 64 F.3d 580, 584 (10th Cir. 1995) (citation
omitted). However, the district court is not required to make any specific findings. Id.
III.

ANALYSIS
In the PFRD, Magistrate Judge Yarbrough found that Petitioner raised two properly

exhausted claims: (1) Petitioner’s trial counsel was ineffective for failing to investigate
Petitioner’s alleged mental incompetence; and (2) it was error that the doctor that testified at
Petitioner’s trial was not the doctor that performed the autopsy of his victim. Magistrate Judge

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Yarbrough found that trial counsel was not ineffective because the state record does not support
Petitioner’s claimed mental incompetency and that the failure of the autopsy doctor to testify did
not violate the Confrontation Clause because the autopsy report was not introduced into
evidence.
Most of Petitioner’s Objections repeat the arguments considered and rejected by
Magistrate Judge Yarbrough. See Objections (Doc.45) at 3-4 (Petitioner is mentally incompetent
because he is receiving disability payments from the government); Id. at 5 (urging review of
new evidence not present in the state court record); Id. at 8 (discussing Petitioner’s need for
mental health counseling, and that he is slow thinking and has difficulty speaking); Id. at 10
(raising claims that have been dismissed as unexhausted); (Doc. 46) at 1 (discussing Petitioner’s
need for regular medications); Id. at 3 (discussing Petitioner’s history of drug abuse); (Doc. 48)
at 3, 10 (discussing Petitioner’s learning disability). As Magistrate Judge Yarbrough explained
in the PFRD, “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.” PFRD
(Doc 44) at 8; see Lafferty v. Cook, 949 F.2d 1546, 1561 (10th Cir. 1991) (“Not all people who
have a mental problem are rendered by it legally incompetent.”); 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.”). Therefore,
failing to raise this issue at trial did not render trial counsel’s performance deficient. In addition,
the Court finds implicit in Magistrate Judge Yarbrough’s PFRD a determination that Petitioner
was sane, and not incompetent or insane at the time Petitioner killed Mr. Lossiah.
Although Petitioner has attempted to bring new evidence of his mental competency to
these federal proceedings, a federal court cannot review evidence that was not in the state court

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record. Habeas review under § 2254(d) is limited to the record that was before the state court that
adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
Finally, Petitioner asserts a new claim based on ineffective assistance of counsel at
sentencing. However, Petitioner did not adequately raise this claim in his federal Petition.2 To a
question in the Petition asking for supporting facts of Petitioner’s ineffective assistance of
counsel claim, Petitioner responds that “he could not assist in his own defense due to his
incompetence.” Petition (Doc. 12) at p. 5. The answer referencing Petitioner’s “defense”
indicates that Petitioner’s claim centers on his counsel’s effectiveness at trial. Nowhere in the
Petition does Petitioner offer any supporting facts regarding competency at sentencing nor does
he claim ineffective assistance specifically based on events that occurred at sentencing. At this
stage of the proceedings, it is inappropriate to advance a new argument. See Marshall v. Chater,
75 F.3d 1421, 1426 (10th Cir. 1996). Arguments made for the first time in an objection to a
magistrate judge’s recommendation are deemed waived. Id.
IT IS ORDERED THAT:
1.

Petitioner’s Objections (Doc. 45, 46, 47) are OVERRULED;

2.

Magistrate Judge Yarbrough’s PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION (DOC. 44) is ADOPTED.

A Final Judgment will be entered.

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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The Court observes that because state law mandates a minimum sentence of life for a capital crime, which is what Petitioner
received for his first-degree murder conviction, it is doubtful whether a claim of ineffective assistance of counsel at sentencing
for that charge would be successful. See State v. Franklin, 413 P.3d 86211 (N.M. 2018). Petitioner also received a three-year
sentence for tampering with evidence, which does not appear to be subject to a mandatory minimum sentence. The record
supplies no evidence that a state court has addressed whether Petitioner received ineffective assistance at sentencing. Even if this
claim were properly before the Court, it would constitute an unexhausted state claim, presenting yet another mixed petition.

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