Tafoya v. Martinez

Filing 44

Proposed Findings and Recommended Disposition by Chief Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 40 Respondent's Motion for Judgment on the Pleadings be GRANTED, and that 1 Petitioner's Petition for Section 2254 Relief be DENIED, as outlined in the PF&RD. Objections to the PF&RD due by 12/10/2018. 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).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDRES JOAQUIN TAFOYA,
Petitioner,
v.

No. CV 17-379 RB/CG

RICK MARTINEZ,
Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Andres Joaquin Tafoya’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the “Petition”), (Doc.
1), filed March 27, 2017, and Respondent’s Supplemental Answer to Andres Joaquin
Tafoya’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Doc. 1] (the
“Response”), (Doc. 29), filed May 3, 2018. Mr. Tafoya did not file a reply within the
deadlines set by the Court for him to do so. Also before the Court is Respondent’s
Motion for Judgment on the Pleadings, Pursuant to Federal Rule of Civil Procedure
12(c), (Doc. 40), filed October 4, 2018, and Mr. Tafoya’s response, (Doc. 43), filed
October 22, 2018. United States District Judge Robert C. Brack referred this case to
Chief United States Magistrate Judge Carmen E. Garza to perform legal analysis and
recommend an ultimate disposition. (Doc. 5).
After considering the parties’ filings, the record, and the relevant law, the Court
RECOMMENDS that Respondent’s Motion for Judgment on the Pleadings, (Doc. 40),
be GRANTED; the Petition, (Doc. 1), be DENIED; and this case be DISMISSED WITH
PREJUDICE.

I.

Background
On January 27, 2005, Mr. Tafoya was charged by grand jury in the Second

Judicial District Court, County of Bernalillo (“State district court” or “trial court”), with four
counts of first-degree criminal sexual penetration of a minor (“CSPM”) (Counts 1, 2, 3,
and 4); two counts of third-degree criminal sexual contact of a minor (“CSCM”) (Counts
5 and 6); and bribery of a witness (Count 7). (Doc. 29-1 at 5-7). The CSPM and CSCM
counts were further narrowed as follows: two counts of vaginal CSPM, two counts of
anal CSPM, one count of CSCM for touching the victim’s intimate parts, and one count
of CSCM for causing the victim to touch Mr. Tafoya’s intimate parts. Id. at 5-6. The
victim was Mr. Tafoya’s niece. (Doc. 29 at 2). The charging period in the indictment was
between January 24, 2002 and December 31, 2004, (Doc. 29-1 at 5-7), which was later
narrowed to between September 30, 2002 and December 26, 2004, (id. at 9-11, 14-18).
On March 9, 2006, Mr. Tafoya filed with the State district court a Motion to
Dismiss for Failure to Give Adequate Notice of Charges, in which he argued the broad
charging period, even after being narrowed, and the lack of specificity in the charges
themselves, amounted to a violation of his right to due process. Id. at 19-30. In May
2006, the State district court issued a detailed order denying the motion. Id. at 33-42.
The State district court first clarified that the factual bases for the charges against Mr.
Tafoya stemmed from four specific incidents referred to as “the Hooter’s incident,” “the
rash incident,” “the mouth covering incident,” and “the last time or Christmastime
incident.” Id. at 35-36. Two other specific incidents identified by the victim—the “first
time incident” and the “camping incident”—were excluded by the State district court

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because the first time incident was outside of the charging period and the camping
incident occurred outside of the State district court’s jurisdiction. Id. at 41.
Next, the State district court weighed the reasonableness of the State’s efforts to
narrow the charging period against the potential prejudice to Mr. Tafoya based on the
lengthy timeframe. Id. at 36. In doing so, the State district court considered the
following: (1) the crimes were alleged to have occurred while the victim was between
the ages of five and seven, and multiple interviews with her demonstrated she did not
have the capacity to provide more particular dates or time periods; (2) the alleged
incidents occurred on a continuous basis and were not a few isolated events; (3)
although the extent to which Mr. Tafoya had frequent and unsupervised access to the
victim was disputed, it was not disputed that he was often present in the same
residence as her during the daytime and overnight; (4) the charged offenses did not
occur in the presence of other witnesses and were not of the sort that were likely to be
discovered immediately; and (5) according to the victim’s statements, she was abused
at least seventeen times. Id. at 36-37. The State district court further considered Mr.
Tafoya’s claim that the long charging period and lack of specificity in the charges
precluded him from presenting an alibi defense. Id. at 38. The court noted that Mr.
Tafoya’s evidence of an alibi—such as bank records, cell phone records, employment
records, and vacation records—would require extremely narrow time frames, such as
specific dates, in order to be effective. Id.
The State district court explained that it is required to “balance the imperative to
provide reasonable notice of charges against the Defendant and the need to allow the
State reasonable leeway in prosecuting crimes committed against children of tender

3

years.” Id. The court found that “the State cannot reasonably have provided greater
specificity of the times of the alleged offenses,” and the “prejudice claimed by the
Defendant is not different from most other defendants who are charged with similar
offenses against young children because in almost all such cases the young child does
not have the capacity to specify particular dates and times of the alleged sexual abuse.”
Id. The court further explained that Mr. Tafoya “is protected by the requirement that the
jury must find him guilty beyond a reasonable doubt and the jury may be affected by the
witness’s inability to specify the exact day and time of the alleged crime and the
subsequent inability of the defendant to establish an alibi defense.” Id. at 40. The State
district court concluded that the “sexual acts alleged were described by the child with
adequate specificity to place [Mr. Tafoya] on notice of the criminal acts which he is
charged with,” and denied Mr. Tafoya’s Motion to Dismiss for Failure to Give Adequate
Notice of Charges. Id. at 41.
On May 24, 2007, a jury found Mr. Tafoya guilty of Counts 1-6. Id. at 1-4.1 Mr.
Tafoya was sentenced to 18 years each for Counts 1, 2, 3, and 4, and 3 years each for
Counts 5 and 6. Id. at 2. The sentences for Counts 1, 2, 3, and 4 were to run
concurrently to each other and consecutively to each of the sentences for Counts 5 and
6, for a total term of imprisonment of 24 years, to be followed by a 2-year term of parole.
Id. at 2-3. Mr. Tafoya filed a direct appeal of his convictions with the New Mexico Court
of Appeals (“Court of Appeals”), raising the following claims: (1) the charging scheme
provided inadequate notice as to the precise charges against him and the covered
period of time; (2) the trial court improperly instructed the jury; (3) the trial court
erroneously admitted hearsay testimony from Sexual Assault Nurse Examiner (“SANE”)
1

Count 7 was dismissed during trial. See (Doc. 29-7 at 101).

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Rosella Vialpondo; and (4) the prosecutor engaged in multiple instances of misconduct.
(Doc. 29-2 at 30-58).
The Court of Appeals entered an order on September 11, 2009, affirming in part
and reversing in part Mr. Tafoya’s convictions. (Doc. 29-3 at 29-77); State v. Tafoya,
2010-NMCA-010, 227 P.3d 92. The court found no error in the State’s charging
scheme, stating that it “agree[d] that the district court struck a proper balance in
weighing the reasonableness of the State’s extensive efforts against the potential
prejudice to Defendant.” Tafoya, 2010-NMCA-010, ¶¶ 18. However, the Court of
Appeals found that the two undifferentiated counts of vaginal CSPM and two
undifferentiated counts of anal CSPM “ultimately violated Defendant’s right to due
process” because the evidence at trial did not link each CSPM charge to one of the four
specific incidents set forth in the trial court’s May 2006 order. Tafoya, 2010-NMCA-010,
¶ 24. The Court of Appeals found no due process violations in the remaining counts of
vaginal and anal CSPM “based on the evidence presented at trial establishing a pattern
of CSPM conduct during the charging period for which [Mr. Tafoya] had notice and an
opportunity to defend.” Id. The court further found that the trial court did not err in
instructing the jury or in admitting hearsay testimony under the exception permitting
statements made for medical purposes, and that the alleged prosecutorial misconduct
did not deprive Mr. Tafoya of a fair trial. Id. at ¶¶ 31-60.
Mr. Tafoya filed a motion for rehearing with the Court of Appeals, (Doc. 29-3 at
79-111), which was denied, (id. at 112). Mr. Tafoya then filed a petition for a writ of
certiorari with the New Mexico Supreme Court, (Doc. 29-4 at 1-23), which was denied
on December 23, 2009, (Doc. 29-5 at 1). The Court of Appeals issued a mandate,

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pursuant to which the State district court dismissed Counts 2 and 4. Id. at 2-4. The State
district court then resentenced Mr. Tafoya to the same 24 years imprisonment and 2
years parole as he was originally sentenced. Id. at 5-8.
On July 27, 2012, Mr. Tafoya filed a petition for a writ of habeas corpus in the
State district court, raising the following claims: (1) his right to due process was violated
because the charging scheme lacked specificity in the dates and nature of the charges,
and because he was convicted on the basis of a “course of conduct” theory; (2) the trial
court erroneously instructed the jury as to the psychological evaluation of the victim, the
definition of “penetration,” and the requirement for a unanimous verdict; (3) the trial
court improperly admitted Ms. Vialpondo’s testimony; and (4) the prosecutor engaged in
misconduct by introducing inadmissible evidence of uncharged acts, denigrating and
disparaging defense counsel, misstating her role as a defender of the victim,
commenting on Mr. Tafoya’s exercise of his constitutional rights, and posing a guiltassuming hypothetical question to Mr. Tafoya when he testified. Id. at 9-51. The State
district court initially denied the petition, (id. at 77), and Mr. Tafoya filed a motion to
reconsider, (Doc. 29-6 at 1-14). The State district court granted the motion to reconsider
and held an evidentiary hearing on the issues of whether Ms. Vialpondo’s testimony
was properly admitted and whether the prosecutor engaged in misconduct by allegedly
admitting this testimony for the sole purpose of establishing the victim’s story. Id. at 1555. Ultimately, the State district court denied the habeas petition, finding that Mr. Tafoya
was barred from relitigating claims already ruled on by the Court of Appeals, there were
no errors relating to the admission of the SANE testimony, and the prosecutorial
misconduct claims should have been raised on direct appeal. Id. at 90-99.

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Mr. Tafoya then filed a petition for a writ of certiorari with the New Mexico
Supreme Court challenging the denial of his state habeas corpus petition, (Doc. 29-7 at
1-58), which was denied on May 9, 2016, (id. at 100). On March 27, 2017, Mr. Tafoya
filed the instant Petition. (Doc. 1). Mr. Tafoya was represented by attorney Billy R.
Blackburn for his state criminal trial, appeal, and habeas proceedings, and is currently
represented by Mr. Blackburn for purposes of this federal habeas proceeding.
In his Petition, Mr. Tafoya brings the following claims: (1) he was provided
inadequate notice of the charges against him; (2) the jury instructions improperly
expanded the acts for which he could be found criminally liable; (3) the jury instructions
improperly allowed for a non-unanimous verdict; (4) the trial court provided a factually
erroneous jury instruction regarding an evaluation of the victim’s mental health; and (5)
the prosecutor engaged in misconduct by eliciting improper testimony from Ms.
Vialpondo, asking the victim about one of the excluded alleged incidents, questioning
the cost of Mr. Tafoya’s defense, implying defense counsel was hiding evidence,
asserting the victim’s rights were superior to Mr. Tafoya’s, asking Mr. Tafoya during
cross-examination to assume he sexually abused the victim, and misstating her role as
a defender of the victim. (Doc. 1 at 5-24). Mr. Tafoya argues these errors violated his
Constitutional rights under the 5th, 6th, and 14th Amendments, including violation of his
rights to due process and to effective assistance of counsel. Id.
On June 30, 2017, Respondent filed his response to the Petition, arguing that Mr.
Tafoya’s ineffective assistance of counsel claims had not been exhausted in the state
courts. (Doc. 10 at 10-12). Because the Petition is “mixed,” Respondent asked the Court
to either dismiss the Petition without prejudice to allow Mr. Tafoya to exhaust those

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claims or allow Mr. Tafoya to elect to dismiss his unexhausted claims and proceed on
the merits of his remaining claims. Id. at 12. After requesting eight extensions of time to
file a reply to Respondent’s response, on February 22, 2018, Mr. Tafoya filed a Notice
of Election to Delete Ineffective Assistance of Counsel Claim from Petition of Writ of
Habeas Corpus, (Doc. 27), in which he agreed to dismiss his unexhausted ineffective
assistance of counsel claims set forth in paragraphs 47 and 48 of the Petition. The
Court thereafter entered an Order for Supplemental Briefing, (Doc. 28), setting
deadlines for supplemental briefing to address the merits of Mr. Tafoya’s remaining
claims.
In Respondent’s supplemental Response to the Petition, he argues that Mr.
Tafoya is not entitled to relief on the merits on any of his remaining claims. First,
Respondent contends Claims 2, 3, and 4 raise nothing more than non-cognizable statelaw errors. (Doc. 29 at 6-8). In the alternative, Respondent argues the state court
decisions on these claims were not contrary to, or an unreasonable application of,
clearly established federal law, and were not based on an unreasonable determination
of the facts. Id. at 7-8. Finally, Respondent contends the state court decisions regarding
Claims 1 and 5 are not contrary to clearly established federal law and are not based on
an unreasonable determination of the facts. Id. at 8-12. Therefore, Respondent argues
Mr. Tafoya is not entitled to relief under 28 U.S.C. § 2254 and asks the Court to deny
Mr. Tafoya’s habeas petition with prejudice.
Mr. Tafoya requested five extensions of time to file a reply addressing
Respondent’s supplemental Response. (Docs. 30, 32, 34, 36, and 38). After granting
four of those requests, and twice stating that no further extensions would be granted,

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the Court denied Mr. Tafoya’s fifth motion for an extension of time finding that Mr.
Tafoya did not set forth good cause for granting another continuance. (Doc. 39). On
October 4, 2018, Respondent filed a Motion for Judgment on the Pleadings, (Doc. 40),
stating the Petition is ready for ruling based on the reasons set forth in Respondent’s
supplemental Response. Mr. Tafoya filed a response to that motion on October 22,
2018. (Doc. 43).
II.

Analysis
A. Governing Law and Standards of Review
Under 28 U.S.C. § 2254, a person in state custody may petition a federal court

for relief on the ground that his detention violates the United States Constitution or laws.
§ 2254(a). When a state court adjudicates a claim on the merits, § 2254 prohibits
federal courts from granting habeas relief unless the state court judgment: (1) resulted
in a decision 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 based on an unreasonable determination of the facts in light of the evidence
presented. §§ 2254(d)(1)-(2). Federal courts must presume factual findings made by the
state courts are correct, and a petitioner must present clear and convincing evidence to
rebut that presumption. § 2254(e)(1).
A state court decision is “contrary to” clearly established law if it: (1) “applies a
rule that contradicts the governing law set forth” in Supreme Court cases, or; (2) if it
“confronts a set of facts that are materially indistinguishable” from a Supreme Court
decision and “nevertheless arrives at a result different from” the Supreme Court
decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court

9

decision constitutes an “unreasonable application” of federal law when a state
“unreasonably applies” Supreme Court precedent “to the facts of a prisoner’s case.” Id.
at 409. The state court decision must be more than incorrect or erroneous. Renico v.
Lett, 559 U.S. 766, 773 (2010) (citation and quotation omitted). Rather, the application
“must be ‘objectively unreasonable.’” Id. (quoting Williams, 529 U.S. at 409). This
imposes a highly deferential standard of review, and state court decisions must be given
the benefit of the doubt. Id.
B. Motion for Judgment on the Pleadings
In his Motion for Judgment on the Pleadings, (Doc. 40), Respondent states the
case is ready for ruling, and asks the Court to deny the Petition for the reasons stated in
Respondent’s supplemental Response. In response to this motion, Mr. Tafoya states
that in his Petition he “set forth all available grounds and the basis for each and every
claim and alleged specific facts to support each and every claim,” and argues that his
failure to file a timely reply to the Petition does not provide grounds for denying the
Petition. (Doc. 43 at 2-4). Therefore, Mr. Tafoya asks the Court to deny Respondent’s
motion for judgment on the pleadings. Id. at 4.
Rule 8(a) of the Rules Governing Section 2254 Proceedings provides that, if the
petition is not dismissed on preliminary review, “the judge must review the answer, any
transcripts and records of state-court proceedings, and any materials submitted under
Rule 7 to determine whether an evidentiary hearing is warranted.” The petitioner bears
the burden of proving the necessity of an evidentiary hearing. See 28 U.S.C. §
2254(e)(2); Williams v. Taylor, 529 U.S. 420, 429-30 (2000). For the reasons set forth
below, the Court finds that the issues in this case can be resolved on the pleadings and

10

without the need for an evidentiary hearing. Therefore, the Court recommends that
Respondent’s Motion for Judgment on the Pleadings, (Doc. 40), be granted.
C. Whether the State Courts’ Decisions Violate § 2254(d)
1. Inadequate Notice of Charges (Claim 1)
Mr. Tafoya first argues he was not provided adequate notice of the charges
against him. (Doc. 1 at 5-13). He states he was charged with three pairs of identical
charges, all within the same three-year period with no distinguishing characteristics. Id.
at 5. Mr. Tafoya states he engaged in lengthy pretrial discovery and sought a Bill of
Particulars to clarify the charges he was facing. Id. at 5-6. Nevertheless, Mr. Tafoya
argues the state failed to distinguish the charges, and claimed it could charge three
pairs of indistinguishable charges because the victim said each of the offenses
happened multiple times. Id. at 6. Mr. Tafoya states that, based on the trial court’s May
2006 order, he developed a defense “to counter the specific allegations of the specific
distinct and identifiable incidents the [State district court’s] Order assured would be at
issue in trial.” Id. at 9. Moreover, he prepared his defense “with the full understanding
that the continuing course of conduct could not form the basis of any conviction at trial.”
Id. However, Mr. Tafoya argues that at trial the State presented non-specific testimony
showing an ongoing pattern of conduct, in violation of the trial court’s order. Id. at 9-10.
In addition, Mr. Tafoya contends the Court of Appeals erred on his direct appeal
by not reversing all of the convictions arising from the state’s charging pattern. Id. at 11
(citing State v. Dominguez, 2008-NMCA-029, 178 P.3d 834). By reversing only two of
the convictions, Mr. Tafoya contends the Court of Appeals “retroactively nullified the trial
court’s May 8, 2006, Order, the jury instructions, and the understanding of the parties,

11

and convicted [Mr. Tafoya] of a continuing course of conduct.” Id. Therefore, Mr. Tafoya
argues he was convicted in violation of his right to due process. Id. at 12.
Respondent counters that Mr. Tafoya had adequate notice the State was
pursuing a continuing course of conduct theory, specifically by the trial court’s order
stating that “‘circumstances indicate that the alleged incidents were of a continuous
nature as opposed to a few discreet or isolated events.’” (Doc. 29 at 9) (quoting Doc.
29-1 at 37). Respondent further argues the Court of Appeals correctly dismissed two
counts of CSPM and upheld Mr. Tafoya’s remaining convictions because they were
sufficiently distinct and based on multiple events within the charging period. Id.
Therefore, Respondent argues Mr. Tafoya fails to show that the state courts’ decisions
were contrary to established federal law or were based on an unreasonable
determination of the facts. (Doc. 29 at 10).
“An indictment is sufficient if it sets forth the elements of the offense charged,
puts the defendant on fair notice of the charges against which he must defend, and
enables the defendant to assert a double jeopardy defense.” Tillman v. Cook, 215 F.3d
1116, 1132 (10th Cir. 2000) (quoting United States v. Dashney, 117 F.3d 1197, 1205
(10th Cir. 1997)); see Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999) (“A
charging instrument may violate the Sixth Amendment by failing to provide a defendant
with adequate notice of the nature and cause of the accusations filed against him.”). An
indictment is generally sufficient where it “set[s] forth an offense in the words of the
statute itself, as long as those words themselves fully, directly, and expressly, without
any uncertainty or ambiguity, set forth all the elements necessary to constitute the

12

offence intended to be punished.” Tillman, 215 F.3d at 1132 (quoting Hamling v. United
States, 418 U.S. 87, 117 (1974)).
While Mr. Tafoya claims he was not given adequate notice of the charges against
him, the record shows that the prosecution and the trial court made extensive efforts to
narrow the time frame and the specificity of the charges. For instance, the State district
court clarified that the factual bases for the charges stemmed from four specific
incidents, and it limited the prosecution to only present evidence that was tied to those
four incidents. (Doc. 29-1 at 40-41) (prohibiting the State from eliciting evidence about
the camping or first time incidents and from referring to criminal acts which did not occur
during the relevant four incidents). In addition, while the Court of Appeals reversed two
of the CSPM charges because the evidence at trial did not link each of those charges to
a separate incident, the Court of Appeals found no due process violation regarding the
way the State charged Mr. Tafoya. Tafoya, 2010-NMCA-010, ¶24. Specifically, the
Court of Appeals found that Mr. Tafoya had adequate notice of the charges against him
because the two CSCM counts were factually distinct, and because the remaining
single counts of vaginal and anal CSPM were based on a pattern of conduct during the
charging period for which Mr. Tafoya had notice and an opportunity to defend. Id. at ¶¶
24, 30. The Court finds no error in the state courts’ decisions on this issue and Mr.
Tafoya does not argue that these decisions are contrary to clearly established federal
law or were based on an unreasonable determination of the facts.
Mr. Tafoya also contends that he was wrongfully convicted on the basis of a
continuing course of conduct. (Doc. 1 at 11-12). Contrary to Mr. Tafoya’s assertion,
however, the trial court did not exclude the continuing course of conduct theory and

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instead stated that the “crimes alleged in the indictment can be pursued whether
individually or in combination with each other,” and that “circumstances indicate that the
alleged incidents were of a continuous nature as opposed to a few discreet or isolated
events.” (Doc. 29-1 at 41). In addition, as explained by the Court of Appeals in Mr.
Tafoya’s direct appeal, New Mexico courts have held that a defendant can be convicted
of a single charge on the basis of a continuing course of conduct when the State does
not have specific evidence that would clearly distinguish multiple acts. See Tafoya,
2010-NMCA-010, ¶ 29 (“[W]e have repeatedly affirmed the principle that multiple
incidents may be charged as a single count.”); Dominguez, 2008-NMCA-029, ¶ 10
(finding the State could proceed with prosecution of a single count of abuse based only
on a child’s statements regarding the defendant’s course of conduct); State v. Gardner,
2003-NMCA-107, ¶¶ 26-28, 76 P.3d 47 (holding that a victim’s allegations supported
one count for a pattern of conduct when they described “a continuing course of conduct
under circumstances where [the defendant] . . . had frequent but unpredictable access
to [the victim] such that the alleged contact occurred continuously and randomly”).
Moreover, Mr. Tafoya does not argue that a conviction on the basis of a continuing
course of conduct is contrary to established federal law.
Next, Mr. Tafoya contends the Court of Appeals erred by not reversing all six of
his convictions, and relies on State v. Dominguez, 2008-NMCA-029. (Doc. 1 at 11). In
Dominguez, the defendant was charged with ten identical counts of CSCM, and nothing
in the indictment provided information that would distinguish one count from any other.
Dominguez, 2008-NMCA-029, ¶ 2. The district court dismissed five of the counts, but
found the State provided the defendant with sufficient notice of facts and circumstances

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as to the remaining five charges and allowed the case to go forward on those five
counts. Id. at ¶ 4. The Court of Appeals affirmed the district court’s decision, stating that
it would have violated the defendant’s due process rights to have to defend against the
five undifferentiated counts, but the remaining five counts were sufficiently linked to
factually distinct incidents of abuse. Id. at ¶¶ 7, 10-11.
Here, the two counts of CSCM and the remaining two counts of CSPM are
factually distinct charges. Moreover, as explained above, Mr. Tafoya was given
sufficient notice that the charges against him were based on a continuing course of
conduct, which was a proper basis for each of these four remaining charges. Therefore,
while Dominguez supports the dismissal of the duplicate counts of vaginal and anal
CSPM, it does not support Mr. Tafoya’s contention that all six of his convictions should
have been reversed.
Finally, while Mr. Tafoya does not specify how the state courts’ decisions on this
issue were contrary to clearly established federal law, the Tenth Circuit has considered
improper joinder claims under the general fairness mandate of the due process clause.
See Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998). In Lucero, the Tenth Circuit
considered the defendant’s claim that two separate criminal indictments alleging
dissimilar facts were improperly joined. Id. at 1313. The Tenth Circuit explained that
improper joinder rises to the level of a constitutional violation only if it actually rendered
the defendant’s trial fundamentally unfair. This unfairness can be demonstrated when
there is a great disparity in the amount of evidence underlying the joined offenses, when
the jury is likely to confuse the evidence or infer a criminal disposition on the part of the
defendant, or when the defendant demonstrates he was precluded from bringing

15

separate defenses for each offense. Id. at 1314-16. The Tenth Circuit further explained
that “habeas petitioners challenging their state convictions under this general fairness
mandate of the due process clause bear an onerous burden,” and that, “[b]ecause of
the significant procedural protection provided by direct review through the state system,
we will not lightly conclude that state court proceedings were so arbitrary as to violate
due process.” Id. at 1314.
Here, evidence was elicited at trial from the victim and others regarding an
ongoing pattern of conduct for each of the factually distinguishable counts of CSCM and
CSPM, and Mr. Tafoya’s defense was that none of the allegations happened and there
was never an opportunity for them to happen. See Tafoya, 2010-NMCA-010, ¶¶19, 24;
(Doc. 29-1 at 39). In addition, the jury was instructed that, to find Mr. Tafoya guilty on
any particular count, it must unanimously agree that each count involved a separate and
distinct act. (Doc. 29-1 at 45-50). Therefore, to the extent Mr. Tafoya is raising a general
fairness due process claim, the Court finds he has not made a sufficient showing of a
constitutional violation. Instead, Mr. Tafoya’s claim is similar to Lucero, where the Tenth
Circuit rejected the habeas due process claim because evidence was presented at trial
linking the defendant to all of the offenses, there was nothing in the record to indicate
the jury was confused about the separate charges, and the defendant’s defenses on
each count were not inconsistent. See Lucero, 133 F.3d at 1315; see also Webber v.
Scott, 390 F.3d 1169, 1177-78 (10th Cir. 2004) (rejecting the defendant’s habeas claim
of unfairness due to improper joinder because evidence was presented at trial on all of
the charges and the defendant denied involvement in any of the charges).

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Based on the foregoing, the Court finds that Mr. Tafoya has not shown that the
state courts’ decisions regarding whether he was given adequate notice of the charges
against him were contrary to or an unreasonable application of federal law or were
based on an unreasonable determination of the facts. Therefore, the Court recommends
this claim be denied.
2. Claims Relating to Jury Instructions (Claims 2, 3, and 4)
Next, Mr. Tafoya raises three claims relating to the jury instructions given in his
state criminal proceeding. He contends the jury instructions were improper because
they: (1) expanded the acts for which Mr. Tafoya could be found criminally liable; (2)
allowed for a non-unanimous verdict; and (3) included a factually erroneous instruction
regarding evaluation of the victim’s mental health. (Doc. 1 at 13-18).
Respondent contends these claims are not cognizable under § 2254 for federal
habeas relief because they merely challenge the manner in which the jury was
instructed. (Doc. 29 at 6-7). Respondent argues that habeas relief based on erroneous
jury instructions is warranted only where the error has caused the trial to become
fundamentally unfair, and Mr. Tafoya has failed to make that showing. Id. at 7 (citing
Lujan v. Tanzy, 2 F.3d 1031, 1035 (10th Cir. 1993)). In addition, Respondent states Mr.
Tafoya has failed to show how the state courts’ decisions on these claims are contrary
to or involved an unreasonable application of clearly established federal law. Id. at 7-8.
A defendant is entitled to jury instructions “as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in [the defendant’s]
favor.” Mathews v. United States, 485 U.S. 58, 63 (1988) (citing Stevenson v. United
States, 162 U.S. 313 (1896)). However, federal habeas review of jury instructions is

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quite limited, and the petitioner bears a heavy burden. Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995). It is not enough that an instruction is “undesirable, erroneous or
even ‘universally condemned’” under state law. Esquibel v. Rice, 13 F.3d 1430, 1432
(10th Cir. 1994) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). Instead, when a
petitioner asserts instructional error on collateral review, the petitioner must establish
“the ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).
a. CSPM Definition
First, Mr. Tafoya argues the trial court expanded the meaning of criminal sexual
penetration in the jury instructions to include insertion of an item into the vulva. (Doc. 1
at 14-15). He contends this instruction violated his constitutional rights because New
Mexico’s jury instructions define criminal sexual penetration as penetration of the
vagina, and define the vulva as “numerous parts, only one of which was the opening of
the vagina.” Id. at 14 (citing Uniform Jury Instructions (“UJIs”) 14-957, 14-982, 14-925,
and 14-981 NMRA). He further contends the evidence presented at trial did not
establish penetration of the vagina as defined by the UJIs. Id.
The trial court instructed the jury that it should find Mr. Tafoya guilty of CSPM for
Counts 1 and 2 if it determined that he “caused the insertion to any extent, of a penis
into the vagina and/or vulva” of the victim. (Doc. 29-1 at 45-46). In considering Mr.
Tafoya’s contention on direct appeal that this instruction constituted reversible error, the
Court of Appeals noted that the UJIs at issue are intended to “reflect the law
criminalizing sexual penetration of a minor as provided in [N.M.S.A. §] 30-9-11.” Tafoya,
2010-NMCA-010, ¶ 41. The court further explained that it reviews jury instructions “as a

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whole to determine whether they provide a correct statement of the law.” Id. at ¶ 45
(citing State v. Laney, 2003-NMCA-144, ¶ 38, 81 P.3d 591 (“A jury instruction is proper,
and nothing more is required, if it fairly and accurately presents the law.”)).
The court then reasoned that New Mexico appellate decisions have “indirectly
recognized that penetration of the vulva is a basis for a CSPM conviction,” and that New
Mexico’s CSP statutes were intended to codify the common law crime of rape, which
“recognizes that penetration of the vulva to any extent constitutes rape.” Id. at ¶ 48
(citations omitted). The court further reasoned that other state courts have held that
CSP statutes are intended to include penetration of the vulva, and that inclusion of the
term “vulva” as part of the CSPM definition is consistent with other related provisions of
N.M.S.A. § 30-9-11(A), such as prohibition of penetration of the “genital or anal
openings of another.” Id. at ¶¶ 49-50. Therefore, the court held that “[i]n light of the
historical recognition defining the common law crime of rape and a proper construction
of all the terms of Section 30-9-11(A),” penetration of the vulva constitutes CSPM and
the instruction given by the district court accurately reflected statutory law. Id. at ¶ 51.
On review, the Court finds that Mr. Tafoya has not shown that the trial court
expanded the meaning of criminal sexual penetration by giving a jury instruction that
included the term “vulva” as part of the definition of CSPM. To the contrary, as
explained by the Court of Appeals, penetration of the vulva can be the basis for a CSPM
conviction in New Mexico. Id. at ¶¶ 48-50. Therefore, the Court finds that this jury
instruction did not “by itself so infect[] the entire trial that the resulting conviction violates
due process.” Cupp, 414 U.S. at 147. Accordingly, neither the trial court’s nor the Court

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of Appeals’ decisions were contrary to or an unreasonable application of clearly
established federal law, and the Court recommends this claim be denied.
b. Unanimity Instruction
Next, Mr. Tafoya argues the trial court erred in its instructions to the jury
regarding unanimity as to the verdict. (Doc. 1 at 15-17). He states he proposed jury
instructions that would have required the jury to unanimously agree as to the particular
act committed, that the act occurred during a particular incident, and that the “act was
separate and distinct from any other act that formed the basis of guilt for any other guilty
verdict.” Id. at 16. However, Mr. Tafoya states the trial court rejected his proposed
instructions and instead instructed the jury that it must only unanimously agree that an
act of conviction was separate and distinct from another act of conviction. Id. It did not
require the jury to unanimously agree as to the act that formed the basis of a finding of
guilt for any particular count. Id. Mr. Tafoya argues these instructions contradicted
earlier rulings by the trial court and violated his constitutional rights. Id. at 17.
First, the Court notes the deferential standard of review under § 2254(d) only
applies to habeas claims that were decided on the merits in state court proceedings. If
the state court did not adjudicate a claim on the merits, and the claim is not otherwise
procedurally barred, the state court’s findings of fact are afforded a presumption of
correctness and both legal conclusions and mixed questions of law and fact are
reviewed de novo. Cole v. Trammell, 755 F.3d 1142, 1148 (10th Cir. 2014).
Here, on Mr. Tafoya’s direct appeal, the Court of Appeals declined to address his
challenge to the trial court’s unanimity instruction because he cited no legal authority in
support of the claim. Tafoya, 2010-NMCA-010, ¶ 53. However, Mr. Tafoya raised this

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claim again in his habeas petition to the State district court, and in his petition for a writ
of certiorari to the New Mexico Supreme Court. (Doc. 29-5 at 35) and (Doc. 29-7 at 12).
While the State district court and the New Mexico Supreme Court both summarily
denied this claim, see (Doc. 29-6 at 90-99) and (Doc. 29-7 at 100), a state court’s
decision is “on the merits” for purposes of § 2254 review even when it denies a claim
“without an accompanying statement of reasons.” Murphy v. Royal, 875 F.3d 896, 925
(10th Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 99 (2011)) (stating “it may
be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary”). Therefore, the Court
will consider this claim under the deferential § 2254(d) standard. See Renico, 559 U.S.
at 773 (explaining that collateral review of state court decisions on the merits must be
“highly deferential”).
“A general instruction on the requirement of unanimity suffices to instruct the jury
that they must be unanimous on whatever specifications they find to be the predicate of
the guilty verdict.” United States v. Linn, 31 F.3d 987, 991 (10th Cir.1994) (quoting
United States v. Sasser, 971 F.2d 470, 477 (10th Cir. 1992)). Here, the trial court
instructed the jury that it must unanimously agree that an act of conviction was separate
and distinct from another act of conviction. (Doc. 29-1 at 45-50).
Mr. Tafoya argues the trial court erred by not requiring the jury to unanimously
agree as to each act that formed the basis of a finding of guilt and that each of those
acts occurred during a particular incident. (Doc. 1 at 16). However, the trial court did not
limit the parameters of this case so narrowly. In its May 2006 Order, the trial court
explained that the factual bases for the charges were four specific incidents and that it

21

would be appropriate for the State to elicit evidence or testimony about the number of
acts or combination of acts related to those specified incidents. (Doc. 29-1 at 41).
Nevertheless, the trial court further explained that the “crimes alleged in the indictment
can be pursued whether individually or in combination with each other,” and that
“circumstances indicate that the alleged incidents were of a continuous nature as
opposed to a few discreet or isolated events.” Id. at 37, 41. Accordingly, contrary to Mr.
Tafoya’s assertion, the trial court did not require the State to establish that a specific act
occurred during a specific incident in order to convict.
Moreover, as explained above, it was not improper for Mr. Tafoya to be convicted
on the basis of a continuing course of conduct, as long as he was not convicted for
multiple indistinguishable charges on that basis. See Tafoya, 2010-NMCA-010, ¶ 29
(“[W]e have repeatedly affirmed the principle that multiple incidents may be charged as
a single count.”); Dominguez, 2008-NMCA-029, ¶ 10 (finding the State could proceed
with prosecution of a single count of abuse based only on a child’s statements regarding
the defendant’s course of conduct). Therefore, other than the duplicate charges of
vaginal and anal CSPM which the Court of Appeals reversed, Mr. Tafoya’s convictions
for four factually separate charges on the basis of a continuing course of conduct were
not in error.
Based on the foregoing, the Court finds that the trial court’s instruction that the
jury must unanimously agree that each act of conviction was separate and distinct from
another act of conviction satisfies the Tenth Circuit’s unanimity requirement. Therefore,
the trial court did not err in denying Mr. Tafoya’s jury instructions requiring unanimity as

22

to the particular acts and when they occurred, and the Court recommends this claim be
denied.
c. Psychological Evaluation Instruction
Third, Mr. Tafoya claims the trial court erred in a jury instruction regarding the
victim’s mental health. (Doc. 1 at 17-18). He states the trial court denied his request
under N.M.S.A. § 30-9-18 for an independent psychological evaluation of the victim, and
the State did not procure an evaluation on its own. Id. at 17. During jury deliberations,
the jury submitted a question to the court asking whether the victim had ever been
subjected to psychological evaluation. Id. at 18. Over Mr. Tafoya’s objection, the trial
court instructed the jury that “since June 6, 2006, any issues relating to testing and/or
evaluations if any have been subject to the jurisdiction of the Court.” Id. The trial court
further instructed the jury “not to speculate regarding the existence or nonexistence of
testing and/or evaluations.” Tafoya, 2010-NMCA-010, ¶ 37. Mr. Tafoya argues this
instruction was inaccurate because only the defense request for an evaluation was
subject to the court’s jurisdiction and the State was not prohibited from independently
obtaining an evaluation. (Doc. 1 at 18).
On direct appeal, the Court of Appeals rejected this claim, stating: “The district
court’s statement did not communicate anything to the jury about whether either party
was permitted to or forbidden from interviewing [the victim].” Tafoya, 2010-NMCA-010, ¶
38. Alternatively, the Court of Appeals found that “to the extent the district court’s
statement could be considered a statement of fact about which parties were controlled
by its pretrial order, [Mr. Tafoya] has cited no authority that the district court’s incorrect
factual statement warrants an automatic reversal.” Id.

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The Court agrees with the Court of Appeals that the trial court’s statement did not
communicate anything to the jury about whether either party had evaluated or was
permitted to evaluate the victim. Moreover, even if the trial court’s statement was
incorrect regarding its control over the State’s ability to procure a psychological
evaluation, Mr. Tafoya does not explain how this statement affected the trial. When a
petitioner asserts instructional error on collateral review, the petitioner must establish
“the instruction by itself so infected the entire trial that the resulting conviction violates
due process,” and it is not enough that an “instruction is undesirable, erroneous or even
‘universally condemned,’” under state law. Estelle, 502 U.S. at 68; Esquibel, 13 F.3d at
1432. Absent such a showing by Mr. Tafoya, the Court finds no error in the state courts’
decisions on this claim, and recommends the claim be denied.
3. Prosecutorial Misconduct (Claim 5)
Mr. Tafoya’s final claim is that the prosecutor engaged in misconduct. First, Mr.
Tafoya argues the prosecutor improperly elicited testimony from Ms. Vialpondo, the
nurse who conducted a sexual assault examination of the victim. (Doc. 1 at 19-23). Mr.
Tafoya states that he initially understood Ms. Vialpondo was going to testify about
physical evidence uncovered during the examination. Id. at 19. However, Mr. Tafoya’s
counsel states the prosecutor told him during a phone call that she intended to call Ms.
Vialpondo to repeat the statements made to Ms. Vialpondo by the victim. Id. at 20.
At trial, over the objections of the defense, the State called Ms. Vialpondo to
testify as an expert in child sexual abuse examination. Id. at 21. In her testimony, Ms.
Vialpondo stated that most of her interview with the victim was directly quoted in her
notes, which she referenced throughout her testimony. Id. at 21-23. Mr. Tafoya states

24

the prosecutor asked Ms. Vialpondo about specific questions posed to the victim and
the victim’s answers to those questions, and the prosecutor relied on the victim’s
statements to Ms. Vialpondo to establish substantive evidence of the charged crimes.
Id. at 23. Mr. Tafoya contends the prosecutor knew Ms. Vialpondo’s testimony was not
admissible. Id.
In addition, Mr. Tafoya brings several cursory allegations that the prosecutor
sought to influence the trial in the following ways: (1) asking the victim about one of the
excluded alleged incidents; (2) questioning the cost of Mr. Tafoya’s defense; (3)
implying defense counsel was hiding evidence at trial; (4) asserting the victim’s rights
were superior to Mr. Tafoya’s; (5) asking Mr. Tafoya during cross-examination to
assume he sexually abused the victim; and (6) misstating her role as a defender of the
victim. Id. at 24. Mr. Tafoya argues the prosecutor’s misconduct violated his
constitutional right to due process. Id.
Respondent counters that the trial court sustained defense counsel’s objections
to the prosecutor’s comments and required the prosecutor to withdraw the question
about the cost of the defense. (Doc. 29 at 10-11). Respondent further argues the state
courts’ decisions on Mr. Tafoya’s prosecutorial misconduct claims were not
unreasonable or contrary to clearly established federal law and were not based upon an
unreasonable determination of the facts. Id. at 11-12.
Under federal law, “[w]here prosecutorial misconduct does not implicate a
specific constitutional right, improper remarks require reversal of a state conviction only
if the remarks so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006)

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(quotation omitted). This is a demanding standard and “not every improper or unfair
remark made by a prosecutor will amount to a federal constitutional deprivation.”
Tillman, 215 F.3d at 1129; see also Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(“[I]t is not enough that the prosecutors’ remarks were undesirable or even universally
condemned.”), and Bland, 459 F.3d at 1024 (“The ultimate question is whether the jury
was able to fairly judge the evidence in light of the prosecutors’ conduct.”). To determine
whether a prosecutor’s improper statements violate a petitioner’s due process rights,
the court must “examine the entire proceeding, ‘including the strength of the evidence
against the petitioner, both as to guilt at that stage of the trial and as to moral culpability
at the sentencing phase’ as well as ‘any cautionary steps ‐ such as instructions to the
jury ‐ offered by the court to counteract improper remarks.’” Bland, 459 F.3d at 1024
(quoting Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002)).
a. Ms. Vialpondo’s Testimony
At trial, the State district court ruled that Ms. Vialpondo’s statements were
admissible under Rule 11-803(D) NMRA as an exception to the hearsay rule for
statements that are made for the purpose of medical diagnosis or treatment. Tafoya,
2010-NMCA-010, ¶ 31. The Court of Appeals found that the trial court did not err in this
ruling because Ms. Vialpondo’s statements fell within the parameters of Rule 11-803(D).
Id. at ¶¶ 33-36. The Court of Appeals reasoned that Ms. Vialpondo testified that she is a
family nurse practitioner trained to assess, diagnose, and treat illnesses, she works at a
pediatric specialty clinic, and, when the victim’s mother brought her in for an
examination, Ms. Vialpondo talked to the victim about why she was there and then
performed an examination. Id. at ¶ 35. The Court of Appeals, therefore, found that Ms.

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Vialpondo’s primary role was to diagnose or treat medical conditions, not to collect
evidence for law enforcement purposes. Id. at ¶ 36.
Mr. Tafoya claims the prosecutor improperly elicited this testimony because she
told Mr. Tafoya’s counsel during a phone call that she intended to call Ms. Vialpondo to
repeat the statements made by the victim, and that the prosecutor knew Ms.
Vialpondo’s testimony was not admissible. (Doc. 1 at 20-23). However, both the trial
court and the Court of Appeals found that Ms. Vialpondo’s testimony was admissible,
and Mr. Tafoya fails to provide any support for a finding that these decisions were in
error. Mr. Tafoya also fails to show how the prosecutor’s alleged statement made in a
phone call to Mr. Tafoya’s counsel could have resulted in an unfair trial. See, e.g.,
Darden, 477 U.S. at 182 (finding no prosecutorial misconduct where the prosecutor’s
statements “did not manipulate or misstate the evidence”), and Smith v. Phillips, 455
U.S. 209, 219 (1982) (“The touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.”). Therefore, the Court finds that the state courts’ decisions on this issue are
neither contrary to clearly established federal law, nor an unreasonable determination of
the facts, and recommends this claim be denied.
b. Remaining Prosecutorial Misconduct Claims
Mr. Tafoya’s remaining prosecutorial misconduct claims are that the prosecutor
improperly sought to influence the trial by: (1) asking the victim about one of the
excluded alleged incidents; (2) questioning who was paying for Mr. Tafoya’s defense;
(3) implying that defense counsel was hiding evidence at trial; (4) asserting the victim’s
rights were superior to Mr. Tafoya’s; (5) asking Mr. Tafoya during cross-examination to

27

assume he sexually abused the victim; and (6) misstating her role as a defender of the
victim. (Doc. 1 at 24). In considering these claims on direct appeal, the Court of Appeals
explained that “[a]n isolated, minor impropriety ordinarily is not sufficient to warrant
reversal . . . because a fair trial is not necessarily a perfect one.” Tafoya, 2010-NMCA010, ¶ 54 (quoting State v. Allen, 2000-NMSC-002, ¶ 95, 994 P.2d 728). The Court of
Appeals further stated that “[p]rosecutorial misconduct rises to the level of fundamental
error when it is so egregious and had such a persuasive and prejudicial effect on the
jury’s verdict that the defendant was deprived of a fair trial.” Id.
Using that standard, the Court of Appeals found no reversible error for the
prosecutor’s alleged misconduct. The Court of Appeals found that the trial court
correctly required the prosecutor to withdraw her question to Mr. Tafoya’s mother about
paying Mr. Tafoya’s defense fees and instructed her to ask the witness in another
manner about any bias she may have for Mr. Tafoya. Id. at ¶ 55-56. Similarly, the Court
of Appeals found that the trial court properly sustained defense counsel’s objections to
the prosecutor’s questions to Mr. Tafoya asking him to assume he had sexually abused
the victim, and regarding the defense’s disclosure of evidence. Id. at ¶¶ 57, 59. As for
the rest of Mr. Tafoya’s prosecutorial misconduct claims, the Court of Appeals found
they did not deprive Mr. Tafoya of a fair trial. Id. at ¶ 60 (finding the prosecutor’s
comments were “isolated and did not involve the introduction of significant improper
evidence that should have swayed the jury on the essential issues in the case”).
The Court finds no error in the state courts’ decisions regarding the prosecutor’s
statements at trial, and Mr. Tafoya provides no support for a finding that these
statements rendered his trial fundamentally unfair. Hall v. Bellmon, 935 F.2d 1106, 1110

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(10th Cir. 1991) (“[C]onclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.”). Therefore, the Court finds
the state courts’ decisions on these claims are neither contrary to clearly established
federal law, nor an unreasonable determination of the facts, and recommends these
claims be denied.
III.

Conclusion
For the foregoing reasons, the Court finds that Mr. Tafoya has not established

that the state courts’ decisions in this case were contrary to or unreasonable
applications of clearly established federal law, or that they were based on unreasonable
determinations of fact in light of the evidence presented. The Court therefore
RECOMMENDS that Respondent’s Motion for Judgment on the Pleadings, Pursuant to
Federal Rule of Civil Procedure 12(c), (Doc. 40), be GRANTED; Mr. Tafoya’s Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, (Doc. 1), be DENIED; and that
this case be DISMISSED WITH PREJUDICE.

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 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.

THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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