Branch v. State of New Mexico et al
Filing
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PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 1 Petition for 2254 Relief by Magistrate Judge Gregory B. Wormuth. Objections to PFRD due by 6/21/2019. (bni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER BRANCH,
Petitioner,
v.
Civ. No. 17‐761 MV/GBW
STATE OF NEW MEXICO, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner’s application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Having reviewed the petition and
Respondents’ answer (doc. 11), I find that the claims raised do not justify habeas relief. I
therefore RECOMMEND that the Court DENY Petitioner’s application and DISMISS his
claims with prejudice.
I.
BACKGROUND OF PROCEEDINGS
Mr. Branch was convicted in state court on July 14, 2008, of the following
offenses: murder in the first degree, aggravated battery against a household member,
aggravated assault against a household member, aggravated assault, and aggravated
fleeing a law enforcement officer. See doc. 11‐1 at 1–2, Exhibit A. He was sentenced at
that time to life for first‐degree murder, three years for aggravated battery against a
household member, and eighteen months each for the offenses of aggravated assault
against a household member, aggravated assault, and aggravated fleeing. Id. at 2. In
addition, due to his prior convictions, the sentences for aggravated battery against a
household member, aggravated assault against a household member, aggravated
assault, and aggravated fleeing were enhanced by four years each. Id. at 3. Mr.
Branch’s convictions were upheld by the New Mexico Supreme Court on direct appeal.
See doc. 11‐1 at 112–29, Exhibit J; doc. 11‐2 at 25, Exhibit L (denying motion for
rehearing).
On June 13, 2011, Mr. Branch filed a petition for habeas corpus in the First
Judicial District of New Mexico. Doc. 11‐2 at 27, Exhibit N. This petition was denied in
the First Judicial Court on December 18, 2014. Doc. 11‐2 at 60, Exhibit T. However,
upon Mr. Branch’s petition for certiorari review, the New Mexico Supreme Court
ordered the State of New Mexico to respond on the issue of
whether Petitioner’s double jeopardy rights were violated when he was
convicted of first‐degree murder under a general verdict that included a theory
of felony murder, without vacating the conviction of any offense that could have
served as the predicate felony.
Doc. 11‐2 at 77 – 78, Exhibit V. In its response, the State conceded that the predicate
felonies of aggravated battery against a household member, aggravated assault against
a household member, and aggravated assault should be vacated to avoid violating Mr.
Branch’s rights under the Double Jeopardy Clause. See doc. 11‐2 at 84, Exhibit W. The
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State therefore requested a limited remand for the entry of an amended judgment and
sentence. Id. at 85.1
On July 29, 2015, the New Mexico Supreme Court granted Mr. Branch’s petition
and remanded to the First Judicial District Court for entry of an amended judgment and
sentence, vacating Mr. Branch’s convictions on counts II, III, and IV. Doc. 11‐2 at 115–
16, Exhibit Z; doc. 11‐2 at 117, Exhibit AA. The First Judicial District Court subsequently
entered an Amended Judgment and Sentence on December 8, 2015, reducing Mr.
Branch’s convictions to murder in the first degree and aggravated fleeing a law
enforcement officer. Doc. 11‐3 at 1–2, Exhibit BB. The amended order sentenced Mr.
Branch to life for first‐degree murder, and eighteen months plus a four‐year habitual
offender enhancement for aggravated fleeing. Id. at 2–3.
On December 23, 2015, Mr. Branch filed another petition for writ of habeas
corpus in state court, this time proceeding pro se. Doc. 11‐3 at 5, Exhibit CC. Relevant to
the petition now before this Court, he requested relief on the specific bases, inter alia, of
double jeopardy and admission of his prior felony convictions at trial. Id. at 8. The First
Judicial Court denied his petition on May 26, 2016, doc. 11‐3 at 28, Exhibit EE, and the
New Mexico Supreme Court denied certiorari review on July 24, 2017, doc. 11‐3 at 133,
Exhibit GG.
Meanwhile, Mr. Branch filed a petition for writ of habeas corpus in this Court on July 9, 2015. See Branch
v. State of New Mexico, No. 15‐cv‐598 MV/SMV. In light of the ongoing state court proceedings, the case
was voluntarily dismissed without prejudice on December 3, 2015.
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Mr. Branch then filed the instant petition for writ of habeas corpus in this Court
on July 24, 2017. Doc. 1. In response to the Court’s Order to Cure Defects (doc. 2), he
completed an amended petition in the correct form. Doc. 4. Respondents timely filed
their answer, per the Court’s order, on March 26, 2019. Doc. 11. Mr. Branch’s
application is now before the Court.
II.
CURRENT PETITION
Facially, the instant application for writ of habeas corpus raises four grounds for
relief. Doc. 4. In their answer, however, Respondents construe Mr. Branch’s petition as
raising only two issues: double jeopardy and admission of prior convictions. Doc. 11 at
3–4. The Court must therefore determine the actual nature and number of the grounds
for relief alleged. Mr. Branch’s amended petition asserts the following:
Ground One: Double Jeopardy. My murder was upheld after my predicate
felonies which may have served in the conviction of felony murder were
dismissed[.]
Ground Two: Predicate Offense to Felony Murder. Predicate offenses may have
served in the conviction of felony 1st degree murder[.]
Ground Three: Harmless Error Analysis. My prior convictions were raised
illegally which is now automatically nothing to do with my present case[.]
Ground Four: Double Jeopardy. My murder is being upheld after the predicate
felonies to felony murder were dismissed which I was never fairly tried or
convicted as if these predicate felonies were dismissed I was never awarded a
fair trial cause the predicate felonies dismissed could have been used in the
conviction of my murder.
Doc. 4 at 5–10.
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Respondents would subsume Grounds One, Two, and Four into a single double
jeopardy claim. See doc. 11 at 3 (characterizing Mr. Branch as “arguing that…he has
been subjected to double jeopardy because his first‐degree murder conviction was
upheld while convictions for the predicate felonies were vacated (Grounds 1, 2, and
4)”). The undersigned agrees that Grounds One, Two, and Four are closely related.
However, Mr. Branch chose not to characterize Ground Two (“Predicate Offense to
Felony Murder”) as a double jeopardy claim, indicating that he may have intended to
raise a different legal issue. Therefore, the undersigned treats Ground Two as a
potentially separate ground for relief. Because Grounds One and Four appear to be
functionally identical, they will be addressed simultaneously under the heading of
double jeopardy.
III.
APPLICABILITY OF § 2254(D)
Mr. Branch petitions the Court for relief under 28 U.S.C. § 2254, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Because § 2254(d)
applies more stringent requirements to claims previously adjudicated on the merits in
state court, “it is important whether a federal claim was ‘adjudicated on the merits in
State court.’” Johnson v. Williams, 586 U.S. 289, 292 (2013) (quoting § 2254(d)).
“When a federal claim has been presented to a state court and the state court has
denied relief, 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
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contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255,
265 (1989)). Even when a state court “rejects a federal claim without expressly
addressing that claim,” the federal district court “must presume that the federal claim
was adjudicated on the merits” in evaluating a habeas petition. Johnson, 568 U.S. at 301.
In Mr. Branch’s case, there is no need for such a presumption because the state
court addressed his claims expressly. His claim regarding the admission of prior
conviction evidence was first addressed by the New Mexico Supreme Court on direct
appeal, where the court engaged in a thorough analysis of the issue and found that
admission of this evidence was improper, but ultimately constituted harmless error. See
doc. 11‐1 at 118–124, Exhibit J. Petitioner’s prior conviction evidence claim was
addressed once again in the context of his state habeas petition. In its Procedural Order
on Petition for Writ of Habeas Corpus, the First Judicial Court summarily dismissed
both of the cognizable claims now presented by Petitioner, explaining in relevant part:
The [New Mexico Supreme Court] addressed the admission of Petitioner’s
prior robbery conviction. The Court found error in the admission of the prior
conviction, but also determined that the error was harmless.
On Petition for Certiorari, the New Mexico Supreme Court vacated his
felony convictions in three counts. In Ground for Relief B, petitioner argues that
his double jeopardy rights were violated because the felonies that were the basis
for felony murder were vacated, and that should have vacated the felony murder
charge too. However, the felony convictions were the predicate felonies for the
felony murder, and vacating these felonies protected Petitioner’s rights
guaranteed by the double jeopardy clause. The felonies were subsumed in the
felony murder count, it does not affect the first degree murder conviction.
Doc. 11‐3 at 29, Exhibit EE (internal citations omitted).
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Even where a state court “summarily rejects without discussion” all of a
defendant’s claims, the federal habeas court on review must presume adjudication on
the merits. Johnson, 568 U.S. at 293 (citing Harrington, 562 U.S. at 86). In this case,
however, the state court provided detailed explanations of its reasoning that
demonstrated its consideration of Petitioner’s federal constitutional claims.2 Therefore,
I find that Petitioner’s claims were adjudicated on the merits in state court,3 triggering
the application of § 2254(d).
IV.
ANALYSIS OF PETITIONER’S CLAIMS
A. Legal Framework
Because Petitioner’s claims were adjudicated on the merits in state court, the
applicable standard of review is found in 28 U.S.C. § 2254(d). Section 2254(d) reads:
To the extent that Ground Two of Mr. Branch’s petition rests on a theory of double jeopardy, it was
adjudicated on the merits in state court as described above. To the extent that it rests on some other legal
theory, its basis is insufficiently clear and it is subject to dismissal regardless of its prior adjudication in
state court. See Section IV(C), supra.
3 Section 2254 also requires exhaustion of all state court remedies before the federal court will consider the
petition. 28 U.S.C. § 2254(b). Respondents do not dispute that Petitioner has exhausted his claims. See
doc. 11 at 4. Petitioner appealed his conviction directly to the New Mexico Supreme Court, and then
pursued both of the cognizable claims now presented through state habeas review. The New Mexico
Supreme Court denied certiorari on his habeas petition on July 24, 2017. Doc. 11‐3 at 133, Exhibit GG.
Therefore, the undersigned agrees with Respondents that Petitioner has pursued all available state court
remedies and exhausted his claims as to Grounds One, Three and Four. To the extent that Ground Two
of Mr. Branch’s petition rests on a theory other than double jeopardy, it would not be exhausted. When a
petition is mixed, the Court has four options: it can “(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) (citations omitted). Because Ground Two (as with Grounds One, Three and Four) lacks any
merit, I recommend ignoring the exhaustion requirement and denying the Petition in its entirety.
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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(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.
Id. Mr. Branch does not allege that the state court made an unreasonable determination
of the facts. See generally doc. 4. Rather, he argues that the state court: (1) incorrectly
applied the double jeopardy standard in declining to vacate his murder conviction, (2)
incorrectly allowed the vacated predicate offenses to serve as a basis for his murder
conviction, and (3) incorrectly concluded that the improper introduction of prior
conviction evidence at trial was harmless error. See id. at 5–10. As these alleged errors
are legal in nature, the Court must look to § 2254(d)(1) to evaluate his claims.
By the express terms of the statute, “clearly established Federal law” comprises
only decisions of the United States Supreme Court. The Supreme Court has clarified
that “‘clearly established Federal law’ for purposes of § 2254(d)(1) includes only ‘the
holdings, as opposed to the dicta, of this Court’s decisions.’” Woodall, 572 U.S. at 419
(quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). In order to be clearly established, the
applicable legal rule must be “beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. “[O]nly the most serious misapplications of Supreme Court
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precedent will be a basis for relief under § 2254.” House v. Hatch, 527 F.3d 1010, 1019
(10th Cir. 2008) (quoting Maynard v. Boone, 468 F.3d 665, 671 (10th Cir. 2006)).
The federal habeas court may grant relief where the state court decision was
either “contrary to” or “involved an unreasonable application of” clearly established
federal law. 28 U.S.C. § 2254(d). These two clauses of § 2254(d)(1) have independent
meaning. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362,
404–05 (2000)). A state court’s decision is “contrary to” clearly established federal law if
it either (a) “applies a rule that contradicts the governing law set forth in Supreme
Court cases” or (b) “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.” House, 527 F.3d at 1018 (internal quotation and citation omitted) (alteration
in original).
An “unreasonable application” of federal law occurs where the state court
identifies the correct rule, but applies it unreasonably to the facts of the case. See Bell,
535 U.S. at 694. In order to support relief under § 2254(d), the state court’s application
of federal law must be “‘objectively unreasonable,’ not merely wrong; even ‘clear error’
will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade,
538 U.S. 63, 75–76 (2003)). The federal habeas court “may not issue the writ simply
because that court concludes in its independent judgment that the relevant state‐court
decision applied clearly established federal law erroneously or incorrectly.” Renico v.
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Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411). Consequently, if the
federal habeas court is satisfied that the state court’s decision was not wrong “beyond
any possibility for fairminded disagreement,” it need not actually decide the issue of
federal law. See Woodall, 527 U.S. at 420–21 (quoting Harrington, 562 U.S. at 103).
A state court’s unreasonable failure to extend clearly established precedent does
not constitute error for which the federal habeas court may grant relief. Woodall, 572
U.S. at 426 (declining to apply the “unreasonable‐refusal‐to‐extend” rule). “Section
2254(d)(1) provides a remedy for instances in which a state court unreasonably applies
this Court’s precedent; it does not require state courts to extend that precedent or license
federal courts to treat the failure to do so as error.” Id. The “unreasonable application”
standard of § 2254(d) is therefore, as the Supreme Court has observed, “difficult to
meet.” Metrish v. Lancaster, 569 U.S. 351, 358 (2013).
B. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, provides that “no person shall…be subject for the
same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend V.
Relevant to Mr. Branch’s petition, it protects criminal defendants against “multiple
criminal punishments for the same offense.” Monge v. California, 524 U.S. 721, 728 (1998)
(citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
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Grounds One and Four (and possibly Ground Two) of Mr. Branch’s petition
appear to be based on a theory that, because several of his felony convictions were
vacated on double jeopardy grounds, his first‐degree murder conviction should have
been vacated likewise. See doc. 4 at 6, 10. For the reasons explained below, this position
is incorrect.
The issue of double jeopardy first arose in Mr. Branch’s case because he was
convicted of murder in the first degree under N.M. Stat. § 30‐2‐1(A) (1978), which
provides:
Murder in the first degree is the killing of one human being by another without
lawful justification or excuse, by any of the means with which death may be
caused:
(1) by any kind of willful, deliberate, and premeditated killing;
(2) in the commission of or attempt to commit any felony; or
(3) by any act greatly dangerous to the lives of others, indicating a depraved
mind regardless of human life.
Id. (emphasis added). Notably, a conviction for first‐degree murder under this statute
may be, but is not necessarily, based on a theory of felony murder. Id. at § 30‐2‐1(A)(2).
In Mr. Branch’s case, the jury did not indicate whether or not the conviction was based
on a felony‐murder theory. See doc. 11‐2 at 82, Exhibit W.
On state habeas review, therefore, the State conceded that Mr. Branch’s first‐
degree murder conviction might have been based on a felony‐murder theory, with the
convictions for aggravated battery, aggravated assault against a household member,
and aggravated assault serving as predicate felonies. Doc. 11‐2 at 84, Exhibit W.
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Because it determined that separate convictions for both felony murder and the
predicate felonies would violate the prohibition on double jeopardy, the State
recommended a limited remand to vacate the convictions of the possible predicate
felonies. Id. at 85–86. See also Missouri v. Hunter, 459 U.S. 359 (1983) (double jeopardy is
implicated where the legislature did not intend to allow cumulative punishment for two
convictions that are based on the same conduct). The New Mexico Supreme Court
remanded, doc. 11‐2 at 117, Exhibit AA, and the First Judicial District Court entered an
Amended Judgment and Sentence reducing Mr. Branch’s convictions to murder in the
first degree and aggravated fleeing a law enforcement officer, doc. 11‐3 at 1–2, Exhibit
BB.
Neither party questions the New Mexico state court’s determination that Mr.
Branch’s now‐vacated felony convictions violated the Double Jeopardy Clause. See
generally docs. 4, 11. However, any constitutional error was effectively cured by the
amended judgment. Where a defendant is improperly convicted of both felony murder
and the underlying felonies, the state court may remedy its double jeopardy error by
vacating the underlying felony convictions and leaving the felony murder conviction in
place. Jones v. Thomas, 491 U.S. 376, 385 (1989) (state court properly altered the
petitioner’s sentence to a single term for felony murder, vacating the lesser felony
conviction). See also Wood v. Milyard, 721 F.3d 1190, 1197 (10th Cir. 2013) (“Because
vacating either murder conviction will suffice to remedy [the petitioner’s] double
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jeopardy complaint, the most equitable result in this case would be one that permits the
elimination of his lesser, second degree murder conviction—or at least permits the
Colorado courts that tried him to choose which conviction will go.”).
Directly applicable Supreme Court precedent, see Jones, 491 U.S. at 385,
establishes that the New Mexico Supreme Court’s remedy for any potential double
jeopardy error in Mr. Branch’s sentencing was the correct one. The fact that the vacated
predicate felonies “could have been used” in the determination of Mr. Branch’s murder
conviction, doc. 4 at 10, does not affect this result. The state court vacated these
convictions not because they were improper in themselves, but because they provided
for potentially duplicate sentences on top of Mr. Branch’s conviction for first‐degree
murder. The undersigned therefore finds no double jeopardy error in the state court’s
refusal to vacate Mr. Branch’s first‐degree murder conviction.
C. “Predicate Felonies”
As his second ground for habeas relief, Mr. Branch cites “Predicate Offense to
Felony Murder.” Doc. 4 at 7. The exact nature of his claim, however, is uncertain at
best. Mr. Branch argues that “[p]redicate offenses may have served in the conviction of
felony 1st degree murder,” but does not specify what made consideration of those
predicate offenses improper. Id.
If, as Respondents assume, Ground Two is merely a duplicate of Mr. Branch’s
double jeopardy claims, then the possible contribution of the vacated felony convictions
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to Mr. Branch’s murder conviction was not improper for the reasons described above.
See Section IV(B), infra. Indeed, the language of Ground Two (“Predicate offenses may
have served in the conviction of felony 1st degree murder”) certainly mirrors the
language used in Ground One (“Vacated predicate offenses which may have served in
the conviction of felony murder”), which is expressly a claim of double jeopardy. See
doc. 4 at 6, 7. To the extent that Ground Two is a double jeopardy claim, therefore, it
should be dismissed.
To the extent that Mr. Branch was attempting to raise an issue unrelated to
double jeopardy, the lack of any “factual support or legal argument” alternatively
merits dismissal. See King v. Parker, 443 F. App’x 369, 372 (10th Cir. 2011) (unpublished)
(district court did not err in dismissing petitioner’s claims for failure to include “any
factual support or legal argument”). While the Court is to “liberally construe” Mr.
Branch’s pro se petition, it is “not required to fashion” Mr. Branch’s arguments for him.
United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citing Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991)). Because nothing in Mr. Branch’s petition renders Ground
Two sufficiently coherent even to be liberally construed, see generally doc. 4, any further
guess at the legal basis for Ground Two would require the Court to invent a legal
argument for him. The burden was on Mr. Branch, even proceeding pro se, to “specify
all grounds for relief” in his petition and “state the facts supporting each ground.” Rule
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2(c)(1)–(2), Rules Governing Section 2254 Cases. He failed to do so. Therefore, I
recommend dismissal of Ground Two.
D. Prior Conviction Evidence
Lastly, Mr. Branch argues in Ground Three of his petition that his prior
convictions were improperly raised during his trial, and that this error was not
harmless. See doc. 4 at 8–9.
Mr. Branch is correct in stating that evidence of his prior convictions was
improperly introduced at trial. On direct appeal, the New Mexico Supreme Court
found that the admission of Mr. Branch’s prior robbery conviction violated the New
Mexico Rules of Evidence, but that the error was harmless in light of the overwhelming
evidence supporting Mr. Branch’s convictions. See doc. 11‐1 at 118–24, Exhibit J (“[W]e
conclude that there was no reasonable probability that the admission of evidence of the
robbery conviction affected the verdict, and thus the district court’s error in admitting it
was harmless.”).
The undersigned accepts the New Mexico Supreme Court’s determination that
admission of the prior conviction evidence was contrary to Rule 11‐404(B) of the New
Mexico Rules of Evidence. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998)
(citing Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)) (“we afford deference to the state
court’s construction of state law”). However, in order for Mr. Branch’s petition to
succeed under § 2254(d), he must establish a violation of federal law; violations merely
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of state law will not suffice. See 28 U.S.C. § 2254(a). Generally, “[t]he states are free to
provide such procedures as they choose, including rules of evidence, provided that
none of them infringes a guarantee in the Federal Constitution.” Burgett v. Texas, 389
U.S. 109, 113–14 (1967). The question before this Court, therefore, is whether the
admission of Mr. Branch’s prior conviction evidence, contrary to the New Mexico Rules
of Evidence, implicated any rights under federal law.
The introduction of improper propensity evidence alone does not implicate any
specific constitutional rights. See United States v. Birch, 39 F.3d 1089, 1094 (10th Cir.
1994) (treating erroneous admission of prior conviction evidence as “non‐constitutional
error”). Where “no particular constitutional guarantees are implicated…evidentiary
objections merely raise questions of state law and, therefore, are cognizable on habeas
only if the alleged error was ‘so grossly prejudicial [that it] fatally infected the trial and
denied the fundamental fairness that is the essence of due process.’” Revilla v. Gibson,
283 F.3d 1203, 1212 (10th Cir. 2002) (quoting Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir.
2000)). See also United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)) (“A non‐constitutional error is
harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave
doubt’ as to whether it had such effect.”). In other words, the New Mexico trial court’s
admission of Mr. Branch’s prior robbery conviction would only rise to the level of a
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constitutional violation if it had such a substantial effect that it rendered his trial
fundamentally unfair.
To determine whether non‐constitutional error rendered a trial fundamentally
unfair, the court must “examin[e] the context, timing, and use of the erroneously
admitted [or excluded] evidence at trial and how it compares to properly admitted
evidence.” United States v. Roach, 896 F.3d 1185, 1195 (10th Cir. 2018) (quoting United
States v. Kupfer, 797 F.3d 1233, 1243 (10th Cir. 2015)). The New Mexico Supreme Court
cited the following reasons for its finding that the erroneous admission of Mr. Branch’s
robbery conviction was harmless error: (1) the detailed testimony of one of the victims
about how Mr. Branch ran over both her and the deceased victim with his truck, and (2)
the detailed, corroborating testimony of three eyewitnesses. Doc. 11‐1 at 123, Exhibit J.
Based on the “disproportionate volume of admissible evidence and the lone piece of
inadmissible evidence,” the New Mexico Supreme Court determined that the error had
no reasonable probability of influencing the outcome and was therefore harmless. Id. at
123–24.
The undersigned finds no constitutional error in the state court’s treatment of
Mr. Branch’s claim. Upon de novo review, it appears implausible that evidence of Mr.
Branch’s prior conviction had a “substantial influence” on the outcome of the trial, so as
to render it fundamentally unfair. Moreover, even if Mr. Branch could demonstrate that
the state court had erred in its decision—and even if that error were of constitutional
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dimension—he would still need to show under § 2254(d) that the state court’s decision
was either in direct contravention of Supreme Court precedent, House, 527 F.3d at 1018,
or unreasonably wrong in its application of such precedent, Woodall, 572 U.S. at 419.
Because Mr. Branch comes nowhere near to meeting this standard, I recommend
dismissal of the claim.
V.
CONCLUSION
In light of the foregoing, I RECOMMEND that Petitioner’s application for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 4) be DISMISSED WITH PREJUDICE.
_____________________________________
GREGORY B. WORMUTH
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 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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