James v. Smith et al

Filing 15

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 11/27/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)

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

SERGIO T. JAMES,
Petitioner,
vs.

CIV 17-0360 JCH/KBM

RAYMOND SMITH, Warden, and
HECTOR H. BALDERAS, Attorney
General for the State of New Mexico,
Respondents.

PARTIAL PROPOSED FINDINGS OF FACT AND
RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1), filed by
Sergio T. James (“Petitioner”) on March 22, 2017, and fully briefed August 14, 2017
(Docs. 12, 14). The Honorable Judith C. Herrera referred this case to me to conduct
hearings, if warranted, including evidentiary hearings, and to perform any legal analysis
required to recommend to the Court an ultimate disposition of the case. Doc. 4. Having
reviewed the submissions of the parties and the relevant law, the Court finds that it is
able to make a decision based on the current record.1 The Court recommends that relief
1

The Court need not hold an evidentiary hearing. Petitioner neither requests a hearing nor
makes any showing that his claims rely on “a new rule of constitutional law, made retroactive . . .
by the Supreme Court[,]” “a factual predicate that could not have been previously discovered
through the exercise of due diligence[,]” or that “ the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty . . . [,]” as required by 28 U.S.C.
§ 2254(e)(2).

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based on Grounds One, Two, and Four of the Petition be denied. As discussed below,
further briefing is required on Ground Three.
I.

Background Facts and Procedural Posture2
Petitioner challenges two New Mexico state court convictions out of the Ninth

Judicial District Court. Doc. 1 at 1. Both convictions are for trafficking controlled
substances in the first degree based upon hand-to-hand buys with a confidential
informant (“CI”). The first conviction in docket number D-0905-CR-2011-00382 (“Case
No. 382”) involved a CI buy on May 12, 2011; the second conviction in docket number
D-0905-CR-2011-00383 (“Case No. 383”) involved a CI buy on May 11, 2011.
In Case No. 382, a jury found Petitioner guilty on December 18, 2012. On
appeal, the New Mexico Court of Appeals affirmed the conviction, and the Supreme
Court denied his Petition for Writ of Certiorari. Petitioner then sought collateral relief by
filing a Petition for Writ of Habeas Corpus with the Ninth Judicial District Court of New
Mexico. The district court denied his Petition, and he then filed a Motion for
Reconsideration and a yet second Petition for Writ of Habeas Corpus. The district court
denied the reconsideration motion and dismissed the second Petition Once again, the
New Mexico Supreme Court denied a Petition for Writ of Certiorari.
In Case No. 383, Petitioner was found guilty on April 21, 2014, following a jury
trial. Once again, the New Mexico Court of Appeals affirmed his conviction, and the
New Mexico Supreme Court denied his Petition for Writ of Certiorari. Petitioner then
filed a Petition for Writ of Habeas Corpus with the Ninth Judicial District Court of New
Mexico that was denied by the district court on November 2, 2014. The New Mexico

2

The Court cites the CM/ECF document numbers and pages, rather than internal page
numbers found in exhibits.

2

Supreme Court then denied his Petition for Writ of Certiorari.
II.

This Federal Petition Addresses Two State Court Convictions
As an initial matter, Respondents argue that the Petition should be dismissed

without prejudice because Petitioner is using a single habeas corpus petition to
challenge state court convictions in both Case No. 382 and No. 383. Respondents
assert that 28 U.S.C § 2254 allows challenges of only a single state action, as
exemplified through the statute’s use of singular words such as “the judgment” and “a
decision.” Doc. 12 at 15-16.
While Section 2254 does reference a challenge to a single action, the Court
recommends allowing Petitioner to go forward with this action challenging two state
court convictions because, as both Petitioner and Respondents concede, the
convictions stem from a common set of facts. See Doc. 1 at 1 (Petition) (“Cases arise
out of events that are similar, ongoing actions, however, they were separated by the
State and tried separately.”); Doc. 12, ¶ 2 (Respondents’ Answer) (“A review of the
record for both cases . . . does seem to support that one set of common facts gave rise
to the separate prosecutions.”).
Indeed, on May 11 and May 12, 2011, agents set up and executed nearly
identical controlled buys with the same CI. During both transactions, agents gave the CI
$100 and instructed him to purchase crack cocaine from Petitioner at Petitioner’s
residence. On both occasions, agents searched the CI and his vehicle before he left,
and the CI was recorded driving to and from the residence. Similar video recordings
show the CI entering the residence, engaging in small talk, and leaving. Upon return to
the agents, the CI was searched, and the CI presented the agents with crack cocaine.

3

In Guerra v. Mott, a petitioner presented a Section 2254 petition to the United
States District Court for the District of Kansas, which challenged three state court
convictions. No. 13-3211-SAC, 2014 WL 201012, at *1 (D. Kan. Jan. 17, 2014). The
court suggested that two of the convictions, attempt to commit sexual exploitation of a
child and rape, happened at the same time and were related, while the third conviction,
battery against a corrections officer, happened at a different time. Id. at *1 & n.2. The
court dismissed the petition for the “unrelated battery” but allowed a single petition for
the other two convictions to go forward. Id. at *1. Similar to Guerra, the convictions
challenged by Petitioner arose from the same drug trafficking investigation and
operation and involved a common set of facts very near in time. The Court therefore
recommends that the Court allow the single petition for the two related convictions.
III.

Petitioner’s Claims
Petitioner asserts four grounds for relief: (1) Petitioner was denied his right to

confront the CI; (2) there was insufficient evidence to convict Petitioner, in violation of
his right to due process; (3) the arresting agent obtained the warrant for Petitioner’s
arrest on perjured information, in violation of Petitioner’s right to due process; and
(4) the trial court erred in admitting a copy of a video recording without requiring the
State to produce the original recording. Doc. 1.
IV.

Legal Standard
Federal courts have statutory authority under Section 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), to issue habeas
corpus relief for persons in state custody. See Harrington v. Richter, 562 U.S. 86, 97-98
(2011). AEDPA “circumscribes our review of federal habeas claims that were

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adjudicated on the merits in state-court proceedings.” Hooks v. Workman, 689 F.3d
1148, 1163 (10th Cir. 2012). AEDPA does not require that a state court provide a
statement of reasons. “The statute refers only to a ‘decision,’ which resulted from an
‘adjudication.’” Harrington, 562 U.S. at 98.
Therefore, even if the state court failed to provide an opinion stating its
reasoning, as long as the state court has made a determination on the merits, Section
2254(d) bars relitigation of that claim in a federal habeas action, subject to only two
exceptions. Id. A federal court may grant relief from a state court decision only where a
petitioner demonstrates that the trial court’s resolution of his claims was “‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’” Hooks, 689 F.3d at 1163 (quoting 28 U.S.C. § 2254(d)(1), (2)).
In the two-step inquiry under Section 2254(d)(1), the threshold question asks
whether the applicant is seeking to invoke a rule of law that was clearly established by
the Supreme Court at the time the conviction became final. Byrd v. Workman, 645 F.3d
1159, 1165 (2011); see also Williams v. Taylor, 529 U.S. 362, 390 (2000). If the law was
clearly established, then the court determines whether the state court decision was
“contrary to or involved an unreasonable application of that clearly established law.”
Byrd, 645 F.3d at 1165 (quoting Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th
Cir.2004) (internal quotations omitted)). A state-court decision is “contrary to” clearly
established law “if the state court applies a rule different from the governing law set
forth” by the Supreme Court or “if it decides a case differently than [the Supreme Court

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has] done on a set of materially indistinguishable facts.” Hooks, 689 F.3d at 1163
(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). “A state-court decision is an
‘unreasonable application’ of clearly established federal law when the state court
‘identifies the correct governing legal principle from th[e Supreme] Court's decisions but
unreasonably applies that principle to the facts of petitioner's case.’” Id. (quoting
Wiggins v. Smith, 539 U.S. 510, 520 (2003)). In analyzing the state court’s decision, this
Court may only review the record that was before the state court and all factual findings
are presumed correct unless rebutted by “clear and convincing evidence.” Id. (quoting
28 U.S.C. § 2254(e)).
AEDPA precludes issuance of a writ simply because the federal court concludes
in its independent judgment that the state court applied the law erroneously or
incorrectly. Byrd, 645 F.3d at 1166. Instead, the application must also be “objectively
unreasonable.” Id. As long as “fairminded jurists could disagree” as to the correctness of
the state court’s decision, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), this
“’highly deferential standard for evaluating state-court rulings[ ]’ . . . demands that
state-court decisions be given the benefit of the doubt.” Hooks, 689 F.3d at 1163
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). For federal habeas claims not
adjudicated on the merits in the state courts, the Court must review the claim de novo
and the deferential standards of Section 2254(d) do not apply. Gipson v. Jordan, 376
F.3d 1193, 1196 (10th Cir. 2004).
V.

Discussion
Respondents do not dispute that Petitioner met all the exhaustion requirements

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for each of his stated grounds for relief.3 Doc. 12 at 6, ¶ 18. Additionally, there is no
dispute that Petitioner is in custody, as required by Section 2254. Doc. 12 at 4, ¶ 14.
A. Ground One: Confrontation Clause
Petitioner first argues that both trial courts violated his right under the
Confrontation Clause by allowing a video recording to be shown at trial that depicted the
non-testifying CI engaging in the controlled buy. Doc. 1-1 at 4. Petitioner presented this
issue to the New Mexico Court of Appeals on direct appeal in both cases, and in both
cases the court addressed the merits and found that there was no violation of the
Confrontation Clause. Docs. 12-1, Ex. G at 56; 12-3, Ex. X at 5.
Pursuant to Section 2254(d)(1), the Court of Appeals’ decision was neither
contrary to, nor involved an unreasonable application of, clearly established federal law.
The U.S. Constitution, Amendment 6 provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” The
United States Supreme Court has applied this only to testimonial evidence against the
accused. Crawford v. Washington, 541 U.S. 36, 51 (2004). “Testimony in turn, is
typically [a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” Id. (quotation omitted). While the Supreme Court has not provided a
laundry list of what is considered testimonial, it has stated that testimony includes
statements made with the primary purpose of establishing or proving past events
potentially relevant to later criminal prosecution, Davis v. Washington, 547 U.S. 813,
822 (2006), and statements “made under circumstances that would lead an objective

3

Pursuant to Section 2254(b)(3), “[a] State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the State, through
counsel, expressly waives the requirement.” Here, “Respondents acknowledge that Mr. James
has satisfied his exhaustion requirement as to all four grounds for relief.” Doc. 12 at 6, ¶ 18.

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witness reasonably to believe that the statement would be available for use at a later
trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009). Additionally, the
Confrontation Clause applies to only testimonial, as opposed to non-testimonial,
statements that are offered to prove the truth of the matter asserted. See Tennessee v.
Street, 471 U.S. 409, 414 (1985).
The New Mexico Court of Appeals addressed three aspects of the video
recordings, determining that nothing in the videos violated the Confrontation Clause.
First, the court held that the trial court’s admission of Petitioner’s own statements
captured in the videos was not a violation of the Confrontation Clause. Docs. 12-1, Ex.
G at 53-54; 12-3, Ex. X at 40. Petitioner is not challenging this aspect of the court’s
ruling, but rather is challenging the trial court’s admission of the CI’s actions and
statements captured in the videos. See Doc. 1-1 at 5-10. To that end, the Court of
Appeals held that the visuals in the video recordings were non-testimonial because
visual recordings are considered real evidence, not testimonial evidence. Docs. 12-1,
Ex. G at 55; 12-3, Ex. X at 42. The court cited State v. Glen Slaughter & Assocs., which
explains that, a video recording, like other real evidence, is not subject to crossexamination. Rather, confrontation challenges should focus on statements in the video,
not the video itself. 1994-NMCA-169, ¶¶ 5-7, 889 P.2d 254, 119 N.M. 219.
Petitioner makes no showing that the CI’s conduct captured in the videos was a
declaration or affirmation. Thus, finding the videos themselves to be non-testimonial is
not contrary to federal law. See Crawford, 541 U.S. at 51. In fact, Petitioner argues that
nothing in the videos showed Petitioner actually selling drugs to the CI, and one video
was turned up towards the ceiling. Docs. 1-1 at 16; 12-2, Ex. N at 23.

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Finally, the Court of Appeals held that the CI’s statements captured in the video
recordings were non-testimonial, and even if they were testimonial, they were not
offered to prove the truth of the matter asserted. Docs. 12-1, Ex. G at 55-56; 12-3, Ex. X
at 42-43. The court recited that the only matters asserted by the CI in the May 12, 2011
video were “a football injury, a women buying him a television, not having plastics and
needing ziplocks, not having money and needing to go to the bank,” (Doc. 12-1, Ex. G
at 56), and in the May 11, 2011 video were “conversations about football.” (Doc. 12-3,
Ex. X at 43). The court properly concluded that these statements were not testimonial
hearsay admitted in violation of the Confrontation Clause. Docs. 12-1, Ex. G at 56; 12-3,
Ex. X at 43. Again, this holding is not contrary to federal law. See Crawford, 541 U.S. at
59-60 n.9.
Petitioner nonetheless argues that these statements became testimonial simply
because the CI knew he was being recorded in conjunction with a criminal investigation.
Doc. 1-1 at 7. However, the Court of Appeals believed it was “not at all clear that the
recorded statement[s]” were made for the primary purpose to “establish some fact with
the understanding that the statement may be used in a later criminal prosecution.”
Docs. 12-1, Ex. G at 55 (internal quotations omitted); 12-3, Ex. X at 42 (internal
quotations omitted). This finding is not contrary to federal law. In particular, federal law
holds that testimonial statements are statements “made under circumstances that would
lead an objective witness reasonably to believe that the statement would be available
for use at a later trial.” Melendez-Diaz, 557 U.S. at 310 (emphasis added). While the CI
may have known his statements would be used later for criminal prosecution, an
objective observer to the conversation may not have. See Curry v. Thaler, No. H-09-

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0379, 2009 WL 4840019, at *5 (S.D. Tex. Dec. 10, 2009).
The Sixth Circuit has held that CI tips are testimonial because they are
“knowingly and purposely made to authorities, accuse someone of a crime, and often
are used against the accused at trial.” United States v. Cromer, 389 F.3d 662, 676 (6th
Cir. 2004). Again, as the Court of Appeals noted, the CI’s statements in the videos at
issue were not statements of accusation, but small talk. Docs. 12-1, Ex. G at 56; 12-3,
Ex. X at 43. Petitioner argues in his Reply that the CI did make testimonial statements
accusing Petitioner of selling drugs, and those statements were then recited in the
Criminal Complaint. Docs. 14 at 7; 1-1 at 22. But any such statements were not
introduced at trial where they would be subject to the Confrontation Clause. See
Docs. 12-1, Ex. G at 57; 12-3, Ex. X at 44.
Finally, pursuant to Section 2254(d)(2), the Court of Appeals’ decision was not
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. The state court’s determination of facts are presumed to
be correct unless rebutted by clear and convincing evidence. § 2254(e)(1). Here,
Petitioner makes no showing that the facts the Court of Appeals relied upon were
inaccurate. In fact, the Court of Appeals expressly recited Petitioner’s statement of facts
regarding what could be seen and heard in the videos. Docs. 12-1, Ex. G at 54; 12-3,
Ex. X at 41.
In summary, the New Mexico Court of Appeals’ determination that Petitioner’s
rights under the Confrontation Clause were not violated in either case is neither contrary
to federal law nor the result of an unreasonable determination of the facts. Accordingly,
Ground One for relief in the Petition should be denied.

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B. Ground Two: Sufficiency of the Evidence
Petitioner next argues that the State’s evidence in both trials was insufficient to
prove beyond a reasonable doubt that he was guilty. Petitioner presented this due
process claim to the New Mexico Court of Appeals in both cases (Docs. 12-1, Ex. F at
32-33; 12-3, Ex. W at 19-20), and, in both cases, the Court of Appeals addressed the
merits and upheld his convictions (Docs. 12-1, Ex. G at 56-59; 12-3, Ex. X at 43-46 ).4
Petitioner also presented this claim to the Ninth Judicial District Court of New Mexico in
a Petition for Writ of Habeas Corpus in Case No. 382. Doc. 12-2, Ex. K at 13. Because
the Court of Appeals decided the issue on the merits and because Petitioner did not
allege any new facts, the district court denied the claim. Doc. 12-2, Ex. L at 17-18.
The “Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In reviewing sufficiency
of the evidence, a court must view the evidence in a light most favorable to the
prosecution and determine if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
318-19 (1979) (citation omitted).
Applying this same standard, the Court of Appeals determined there was
sufficient evidence in both cases. Docs. 12-1, Ex. G at 57-58; 12-3, Ex. X at 44-45. The
court reviewed the evidence presented by the State, including testimony from narcotics
agents who set up the controlled buys and searched the CI before and after the buys,
4

Petitioner did not present this claim to the Court of Appeals in his original docketing statement
(Docs. 12-1, Ex. D; 12-3, Ex. U), but in his Memorandum in Opposition to Proposed Summary
Affirmance and Motion to Amend Docketing Statement (Docs. 12-1, Ex. F; 12-3, Ex. W). The
Court of Appeals still addressed the merits of the issue, because “a motion [to amend] will only
be granted if the arguments [are] viable.” Docs. 12-1, Ex. G at 56; 12-3, Ex. X at 43.

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videos showing the CI going to the directed location, and testimony from the agents
accepting the drugs at the end of the buys. While acknowledging that the evidence was
circumstantial, the court still found it was sufficient to support the juries’ guilty verdicts in
both cases. Docs. 12-1, Ex. G at 57-58; 12-3, Ex. X at 44-45. The Court of Appeals
looked at all the evidence in the light most favorable to the State, and determined a
rational trier of fact could find guilt beyond a reasonable doubt. This is not contrary to
federal law or an unreasonable application of federal law, but is the precise standard
that the Due Process Clause requires. Thus, pursuant to Section 2254(d)(1), the Court
of Appeals’ decision was neither contrary to, nor involved an unreasonable application
of, clearly established federal law.
Additionally, pursuant to Section 2254(d)(2), the Court of Appeals’ decision was
not based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Petitioner does not rebut the facts the court
relied on, though he does add some additional facts. Doc. 1-1 at 11. In essence,
Petitioner argues that such evidence was “too circumstantial” to support a criminal
conviction. Id. at 11-12. But as the Supreme Court of the United States has noted, “we
have never questioned the sufficiency of circumstantial evidence in support of a criminal
conviction, even though proof beyond a reasonable doubt is required.” Desert Palace,
Inc. v. Costa, 539 U.S. 90, 100 (2003), citing Holland v. United States, 348 U.S. 121,
140 (1954) (observing that, in criminal cases, circumstantial evidence is “intrinsically no
different from testimonial evidence”). Because neither the requirements in Section 2254
(d)(1) or (2) are met, Petitioner’s claim for relief based on Ground Two should be
denied.

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C. Ground Three: Perjured Arrested Warrant
Petitioner’s maintains that his right to due process was violated because Agent
Caroland obtained the warrant for his arrest on perjured information. Doc. 1-1 at 15-17.
Petitioner contends that Agent Caroland lied on the Affidavit for Arrest Warrant, and
without those lies, no probable cause for his arrest existed. Id. The affidavits submitted
by Agent Caroland in both Case Nos. 382 and 383 are very similar and recite identical
facts to establish probable cause based on the very similar, back-to-back, controlled
buys. See id. at 21-22; Doc. 12-4, Ex. DD at 21-22.
Petitioner does not make clear, however, if he is challenging both affidavits, as
he only attached the affidavit and criminal complaint from Case No. 383 to his Petition.
Doc. 1-1 at 21-22. In Case No. 382, Petitioner first presented the issue of a perjured
affidavit as a ground for relief in his second Petition for Writ of Habeas Corpus to the
Ninth Judicial District Court of New Mexico.5 Doc. 12-2, Ex. N at 23-27. The district court
dismissed the Petition pursuant to a New Mexico procedural rule, Rule 5-802(H)(1)
NMRA. That rule provides that as to second and successive petitions, the court has
discretion to “dismiss any claim not raised in a prior petition unless fundamental error
has occurred, or unless an adequate record to address the claim properly was not
available to the time prior of the petition.” Doc. 12-2, Ex. O at 44. Respondents argue
Ground Three for relief in this federal petition therefore should be denied under the
doctrine of procedural default, since the issue was decided on independent and
adequate state procedural grounds by the state court, and the Court agrees as to Case

5

Petitioner filed his first Petition for Writ of Habeas Corpus on November 9, 2015 with the Ninth Judicial
District Court. Doc. 12-2, Ex. K. His grounds for relief included only ineffective assistance of counsel,
prosecutorial misconduct, and insufficiency of the evidence. Doc. 12-2, Ex. K. The court denied the
Petition (Doc. 12-2, Ex. L at 19), and his Motion for Reconsideration (Doc. 12-2, Ex. M).

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No. 382.
Petitioner appears to be challenging the Affidavit in Case No. 383, however. In
Case No. 383, Petitioner first presented the issue of the perjured arrest warrant in his
only Petition for Writ of Habeas Corpus to the Ninth Judicial District Court of New
Mexico. Doc. 12-4, Ex. BB. There, the state district court denied the Petition, not on
procedural grounds as in Case No. 382, but because it found the issues raised were
similar to those issues raised and decided on direct appeal. Doc. 12-3, Ex. EE. Thus,
Respondents’ Answer which addresses only a procedural default argument falls short.
The Court therefore orders additional briefing on the merits of Ground Three for relief as
challenged by Petitioner in Case No. 383.
D. Ground Four: Best Evidence
Petitioner’s final ground for relief is essentially a “best evidence” argument. He
contends that the trial court violated his right to due process by allowed the State to
show a copy of the video recording instead of the original. Doc. 1-1 at 17-18. Although
not explicit, Petitioner seems to be referring to the video recording from May 11, 2011,
in Case No. 383. See Id. at 18 (Petition) (describing the video as showing the CI
interacting with an unknown man); Doc. 12-3, Ex. W at 21 (Memorandum in Case No.
383) (describing the video as showing the CI interacting with an unknown man).
Petitioner presented this specific claim to the Ninth Judicial District Court of New Mexico
in Case No. 383 in his Petition for Writ of Habeas Corpus. Doc. 12-3, Ex. BB at 77-79.
The court denied the Petition, finding that the New Mexico Court of Appeals, on direct
appeal, addressed and resolved similar issues relating to the video. Doc. 12-3, Ex. CC
at 84-85.

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Petitioner apparently maintains that the trial court violated New Mexico Rule of
Evidence 11-1002 NMRA (which requires an original recording) and Rule 11-1003
NMRA (which allows duplicates unless there is a genuine question about the original’s
authenticity or the circumstances make it unfair to admit the duplicate). Petitioner
argues that the trial court’s alleged violation of a state rule of evidence rises to a
violation of his right to due process under the federal Constitution. Doc. 1-1 at 17-19.
Federal habeas corpus relief, however, does not extend simply to errors of state
law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). “[I]t is not the province of federal
habeas courts to reexamine state-court determination on state-law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, law, or treaties of the United States.” Estelle, 502 U.S. at 6768.
Therefore, to determine if a violation of the state best evidence rule amounts to a
violation of Constitutional Due Process, this Court must determine if allowing the copy
was fundamentally unfair. “Cases in this Court have long proceeded on the premise that
the Due Process Clause guarantees the fundamental elements of fairness in a criminal
trial.” Spencer v. Texas, 385 U.S. 554, 563-64 (1967). The court looks at whether the
challenged evidence “so infused that trial with unfairness as to deny due process of
law.” Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (quoting Estelle, 502
U.S. at 75) (internal quotations omitted). However, the Supreme Court has defined
infractions that violate fundamental fairness very narrowly. Dowling v. United States,
493 U.S. 342, 352 (1990). Fundamental unfairness can be determined by considering
“all the surrounding circumstances, including the strength of the state’s case.” Hamilton

15

v. Mullin, 436 F.3d 1181, 1187 (10th Cir. 2006) (quoting Coleman v. Brown, 802 F.2d
1227, 1237 (10th Cir. 1986) (internal quotations omitted)).
Simply put, the trial court’s decision to admit a copy of the video recording
instead of requiring the original does not rise to the level of “fundamentally unfair.”
Petitioner argues the duplicate could be missing exculpatory evidence (Doc. 1-1 at 19),
but the New Mexico Court of Appeals determined that the State laid an adequate
foundation for the authenticity of the video recording and that the recording was copied
without any alteration (Doc. 12-3, Ex. V at 14-15). Petitioner has not challenged these
findings (Doc. 12-3, Ex. X at 40), and he fails to show that the court made an
unreasonable determination of facts in light of the evidence presented. Because
admission of the duplicate video recording was not fundamentally unfair, Petitioner’s
rights under the Due Process Clause were not violated.
Moreover, even if the video recording had not been admitted, the State’s case
against Petitioner was very strong. The prosecution would still have had the testimony
of the narcotics agent who set up the controlled buy along with their descriptions of the
directions they gave to the CI to purchase from Petitioner at his residence, the searches
of the CI before and after the buy, and the drugs obtained from the CI after the buy.
Doc. 12-3, Ex. X at 44. A jury could have easily found Petitioner guilty beyond a
reasonable doubt even in the absence of introduction of the video.
Recommendations
For the reasons set forth above, the Court recommends against dismissal of the
Petition simply because it challenges two state court convictions that are based on
virtually identical facts occurring in a two-day timespan. However, the Court

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recommends that habeas relief be denied on the claims raised in Grounds One, Two,
and Four of the Petition. Finally, the Court recommends that the presiding judge order
Respondents to file a supplemental brief the merits of Ground Three that specifically
addresses Case No. 383.
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.

_______________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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