Boyett v. Smith et al

Filing 17

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that Petitioner be given an opportunity to file an amended petition or dismiss his unexhausted claims as explained in the PF&RD. Objections to P F&RD due by 10/16/2017. 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).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CECIL BOYETT,
Petitioner,
No. CV 17-374 KG/CG
v.
UNITED STATES OF AMERICA,
Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Cecil Boyett’s Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”),
(Doc. 1), filed March 27, 2017; Respondents R.C. Smith and Hector Balderas’ Answer
to Cecil Boyett’s pro se Petition for Writ of Habeas Corpus (18 U.S.C. § 2254) [Doc. 1]
(the “Response”), (Doc. 11), filed June 30, 2017; the accompanying Record Proper on
Appeal (the “Record), (Doc. 12), filed June 30, 2017; and Petitioner’s Reply to
Respondent’s Answer to Petitioner’s 28 U.S.C. Section 2254 Petition (the “Reply”),
(Doc. 16), filed July 13, 2017. United States District Judge Kenneth J. Gonzales referred
this case to Magistrate Judge Carmen E. Garza to perform legal analysis and
recommend an ultimate disposition. (Doc. 5). Having considered the parties’ filings and
the relevant law, the Court RECOMMENDS that Petitioner be given fourteen (14) days
to amend the Petition to include only claims that Petitioner has exhausted through
available state remedies, as further explained below.
I.

Background
This case arises from the shooting death of Deborah Roach. Although Petitioner

disputes several details, the basic facts are that Petitioner shot Ms. Roach in the head,

killing her, in front of his house on the afternoon of February 5, 2004. On December 12,
2005, a jury found Petitioner guilty of first-degree willful and deliberate murder in
violation of NMSA 1978, Section 30-2-1(A)(1) (1994). (Doc. 11-1 at 1-2). Petitioner was
sentenced to life in prison with parole eligibility after thirty years, to be followed by five
years of parole. Id. Petitioner appealed his conviction, arguing the trial court erred in
denying certain jury instructions and denying Petitioner’s motion for a new trial. (Doc.
11-1 at 22-23). The New Mexico Supreme Court affirmed on all grounds. (Doc. 11-2 at
1-21); State v. Boyett, 2008-NMSC-030, 144 N.M. 184, 185 P.3d 555. Petitioner then
filed a petition for writ of habeas corpus with the state courts of New Mexico, claiming
he was denied his right to effective assistance of counsel and to be present at every
stage of the trial. (Doc. 11-2 at 23-39). Following an evidentiary hearing, (Docs. 11-3,
11-4), the state court found Petitioner was not denied either right. (Doc. 11-5 at 17-25).
Specifically, the state court found Petitioner’s trial counsel pursued a plausible, rational
trial strategy, therefore Petitioner received effective assistance, and no juror was
replaced outside Petitioner’s presence, therefore he was present at all stages of trial. Id.
at 24-25. Petitioner filed a petition for writ of certiorari with the New Mexico Supreme
Court, (Doc. 11-5 at 27-37), which was denied, (Doc. 11-5 at 48). Petitioner
subsequently filed the instant Petition.
In the Petition, Petitioner claims four grounds for relief: (1) ineffective assistance
of counsel; (2) denial of his right to be present at all critical stages of trial; (3) denial of
his right to due process; and (4) withholding of exculpatory evidence. (Doc. 1 at 5-10).
The second and fourth grounds are straightforward. Regarding denial of his right to be
present at all critical stages of trial, Petitioner alleges a juror was replaced with an

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alternate outside of his presence. (Doc. 1 at 7). As for withholding exculpatory evidence,
Petitioner contends the trial prosecutor withheld evidence, specifically a “safety
contract” written by the victim in which she promised to tell someone if she became
“suicidal or too depressed.” (Doc. 1 at 10).
Petitioner’s ineffective assistance claim contains several component claims of
deficient performance and prejudice. First, Petitioner alleges his trial counsel was
ineffective by failing to present expert testimony regarding head injuries he has suffered,
which, he alleges, affected his ability to form specific intent to murder. (Doc. 1 at 5).
Further, Petitioner claims his counsel failed to call an expert to rebut a computergenerated reenactment of the crime scene. Id. Finally, Petitioner argues DNA testing
would have “clearly established” Petitioner and the victim’s positions. Id. Regarding his
right to due process under the Fourteenth Amendment, Petitioner alleges the trial court
denied him due process by denying jury instructions on inability to form specific intent,
defense of habitation, and self-defense. Id. at 8. Petitioner also alleges his right to call
expert witnesses for rebuttal was violated. Id.
Respondents argue that the Petition fails, at least initially, because Petitioner has
failed to exhaust available state court remedies as required by § 2254(b)(1)(A). First,
Respondents contend that Petitioner failed to raise a number of arguments about why
his counsel was ineffective in the underlying state proceedings; therefore, Petitioner
failed to exhaust available state court remedies regarding those arguments. (Doc. 11 at
5-6). Respondents further argue Petitioner failed to exhaust his claims regarding
exculpatory evidence and a jury instruction on self-defense. Id. at.7-8. Respondents
admit Petitioner exhausted available remedies regarding one expert witness, two of the

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jury instruction issues, and the allegedly replaced juror. Id. 6-7. Respondents do not
object to dismissing the Petition without prejudice because it is mixed or allowing
Petitioner to delete the unexhausted claims and proceed with the exhausted claims. Id.
at 14-15. Finally, if Petitioner amends the Petition, Respondents request a “reasonable
time” in which to amend the Response, presumably to argue the merits of the Petition.
Id. at 14.
In his Reply, Petitioner argues the merits of the Petition and raises several new
arguments. (Doc. 16 at 1-15). Regarding exhaustion, Petitioner denies that the Petition
is “mixed” and asks that any of Respondents’ claims regarding failure to exhaust be
waived in the interests of justice. Id. at 17. Petitioner indicates he wishes to avoid
another multi-year “battle” in New Mexico state courts. Id. at 22. Petitioner asks that if
the Petition is found to be “mixed,” the Court decide it on the merits. Id. at 23. Finally,
Petitioner specifically asks that the Petition not be dismissed, and that he be allowed to
dismiss only the unexhausted claims and proceed with exhausted claims. Id.
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 he is in custody in violation of the United States Constitution
or laws. § 2254(a). A petition under § 2254 may not be granted 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; or (2) resulted
in a decision based on an unreasonable determination of the facts in light of the
evidence presented. §§ 2254(d)(1)-2). Factual findings are presumed correct and the

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petitioner has the burden of rebutting that presumption by clear and convincing
evidence. § 2254(e)(1).
Further, a § 2254 petition may not be granted unless the petitioner has
“exhausted remedies available in the courts of the State.” § 2254(b)(1)(A). A petitioner
has not exhausted available remedies “if he has the right under the law of the State to
raise, by any available procedure, the question presented.” § 2254(c). In order to
exhaust a claim, the “federal claim must be fairly presented to the state courts.” Picard
v. Connor, 404 U.S. 270, 275 (1971); see also Anderson v. Harless, 459 U.S. 4 (1982).
“Fair presentation” means “that the substance of the claim must be raised in state
court.” Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009), abrogated on other
grounds by Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). Both the
“allegations and supporting evidence must offer the state courts ‘a fair opportunity to
apply controlling legal principles to the facts bearing upon [a] constitutional claim.’” Id.
(quoting Anderson, 459 U.S. at 6).
A petitioner need only present a claim once, either through direct appeal or
collateral review. See Brown v. Allen, 344 U.S. 443, 447 (1953) (stating it “is not
necessary . . . for the prisoner to ask the state for collateral relief, based on the same
evidence and issues already decided by direct review.”); Dever v. Kan. State
Penitentiary, 288 F.3d 1231, 1235-36 (10th Cir. 2002) (“The exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court,
either by direct review of the conviction or in a postconviction attack.”). However, a
petitioner must have exhausted all claims in the § 2554 motion. Rose v. Lundy, 455

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U.S. 509, 513-22 (1982); see Rhines v. Weber, 544 U.S. 269, 274-276 (2005)
(discussing how § 2254 “preserved Lundy’s total exhaustion requirement”).
If a petitioner has not exhausted all claims in his § 2254 petition, the petition is
“mixed” and the Court may: (1) dismiss the entire petition without prejudice; (2) stay the
petition and hold it in abeyance while the petitioner exhausts the unexhausted claims;
(3) allow the petitioner to dismiss the unexhausted claims and move forward only with
the exhausted claims; or (4) ignore the exhaustion requirement and deny the petition on
the merits if none of the claims are meritorious. Fairchild v. Workman, 579 F.3d 1134,
1156 (10th Cir. 2009) (quoting Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). If
the Court denies the petition, it must do so entirely either with or without prejudice; the
Court cannot dismiss some claims with prejudice and others without prejudice. See
Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (stating “individual,
unexhausted claims may be denied, but only if the result allows the court to determine
the entire petition on the merits”); Hinzo v. Tapia, 378 Fed. Appx. 857, 858-59 (10th Cir.
2010) (unpublished) (reversing district court that dismissed some claims with prejudice
and others without prejudice).
b. Whether Petitioner exhausted all of his claims
As discussed, the parties disagree whether or not Petitioner has exhausted all
the claims in his Petition. Petitioner makes several claims in the Petition, some with
several subparts. Petitioner’s four broad claims are that he was denied due process as
a result of: (1) ineffective assistance of counsel; (2) replacement of a juror outside his
presence; (3) the trial court’s denial of certain jury instructions; and (4) the prosecutor’s
withholding or destruction of exculpatory evidence. (Doc. 1 at 5-15). First, Petitioner

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claims his trial counsel was ineffective by failing to call expert witnesses, including an
expert to testify regarding Petitioner’s inability to form specific intent, a crime
reconstruction expert, and a DNA expert witness. Id. at 5-7. Petitioner’s second claim is
that a juror was replaced outside his presence, that the trial prosecutor has lied about
this, and the trial record erroneously does not reflect this. Id. at 7. Third, Petitioner
alleges the trial court erred in denying jury instructions on inability to form specific intent,
defense of habitation, and self-defense, and denied his right to call expert witnesses. Id.
at 8. In his Reply, Petitioner expands on the last sub-claim, stating he was denied his
right to compulsory process. (Doc. 16 at 7). Finally, Petitioner claims the victim signed a
“safety contract” in which she agreed not to harm herself and to reach out to a friend if
she felt suicidal. (Doc. 1 at 10). Petitioner claims this was exculpatory evidence the
prosecution either withheld or destroyed. Id. at 10, 22-23.
Additionally, Petitioner makes several allegations in the Petition under the
heading “Additional Supporting Facts.” Id. at 15-33. In support of his claims, Petitioner
contends that: the trial prosecutor intimidated his expert witness into not testifying, id. at
15-17; trial counsel guaranteed acquittal, causing Plaintiff to reject a plea agreement, id.
at 18; trial counsel failed to adequately investigate alleged evidence tampering at the
victim’s residence, id. at 20; trial counsel failed to investigate or call an expert regarding
burns on the victim’s hands, id.; trial counsel ineffectively cross-examined witnesses
and failed to present evidence of the victim’s statements about Petitioner, id. at 21-22;
the trial judge should have recused himself because of a personal and business
relationship with trial counsel, id. at 25; Petitioner’s counsel failed to introduce a signed,
notarized statement by a witness that a juror was replaced, id. at 28-29; at trial, the

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bailiff improperly influenced the jury by repeatedly interacting with the victim’s family in
court, id. at 29; and that the trial court improperly suppressed evidence related to the
victim’s termination from her law enforcement job for firing her service weapon at two
unarmed suspects, id. at 33. Given the parties’ disagreements, the Court will examine
the state court records to determine what issues Petitioner has exhausted.
1. Direct Appeal
Petitioner pursued both a direct appeal and collateral review of his conviction. On
direct appeal, Petitioner argued that the district court erred by denying certain jury
instructions and denying Petitioner’s motion for a new trial. (Doc. 11-1 at 22-45; Doc.
11-2 at 1-20); State v. Boyett, 2008-NMSC-030, 144 N.M. 184, 185 P.3d 355.
Specifically, Petitioner argued the trial court erred by denying jury instructions on
defense of habitation and inability to form specific intent. (Doc. 11-1 at 23); Boyett,
2008-NMSC-030, ¶ 9. On appeal, the New Mexico Supreme Court held that defense of
habitation is a valid defense in New Mexico, but no evidence supported offering the
instruction in Petitioner’s case. Id. ¶¶ 14-25. Further, Petitioner was not entitled to an
instruction on inability to form specific intent because, In Petitioner’s case, such an
instruction required expert opinion evidence and Petitioner offered none at trial. Id. ¶¶
26-30.
Regarding Petitioner’s motion for a new trial, Petitioner argued that the absence
of expert testimony affected his ability to present his defense and resulted in prejudicial
error requiring a new trial. Id. ¶ 32; see (Doc. 11-1 at 36-41; 80-91). The New Mexico
Supreme Court distinguished Petitioner’s case from others in which the trial court
excluded expert testimony or denied a continuance to obtain expert testimony. Id. ¶ 32-

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33; (Doc. 11-1 at 18-19). In Petitioner’s case, Petitioner was on notice his expert
witness might not testify, the expert witness did not appear at trial, and Petitioner did not
move for a continuance or subpoena the witness. Id. ¶ 33-34; (Doc. 11-1 at 19). Finally,
during a hearing on his motion for a new trial, Petitioner “merely speculated” that he
could have found another expert witness; Petitioner did not submit a diagnosis,
evaluation, or affidavit explaining his inability to form specific intent. Id. ¶ 35; (Doc. 11-1
at 19-20). Accordingly, the New Mexico Supreme Court was “left to speculate about any
prejudice to [Petitioner] caused by his counsel’s decision not to request a continuance.”
Id.
Given Petitioner’s arguments and the New Mexico Supreme Court’s decision,
Petitioner “fairly presented” the issues of denial of jury instructions regarding inability to
form specific intent and denial of jury instructions regarding defense of habitation to the
New Mexico Supreme Court. Petitioner presented the substance of his arguments, such
that the court had the opportunity to apply controlling legal precedent on these issues.
Further, because he presented these issues on direct appeal, Petitioner was not
required to repeat them when seeking collateral relief. Accordingly, Petitioner exhausted
state remedies regarding these issues to the extent they are raised in the Petition.
2. Collateral Relief
On October 31, 2006, Petitioner filed a petition for writ of habeas corpus in state
court. (Doc. 11-2 at 23). In the state petition, Petitioner raised two grounds for relief: that
he was denied effective assistance of counsel and was denied his right to be present at
every stage of his own trial. Id. Regarding ineffective assistance of counsel, Petitioner
argued his trial counsel’s failure to call an expert witness about Petitioner’s traumatic

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brain injury was not a tactical decision, but was gross negligence undermining
Petitioner’s right to present his defense. Id. at 24-25. Further, Petitioner claimed his trial
counsel was ineffective by failing to: (1) conduct an adequate investigation and present
evidence regarding the victim’s aggression, violent conduct, and suicidal behavior; (2)
call a blood spatter expert to rebut the state expert’s testimony about Petitioner’s and
the victim’s relative positions; (3) test physical evidence, which would have supported
Petitioner’s theory about his and the victim’s relative positions; and (4) call a crime
scene specialist to testify regarding the inadequacy of the police investigation and
contamination of the crime scene. Id. at 27-28. As for his second argument, Petitioner
claimed that after the jury was sworn and dismissed for lunch, an alternate juror
replaced a seated juror. Id. at 29. Petitioner alleged this occurred outside his presence
and therefore violated his federal constitutional right to be present at his own trial. Id. at
29-31.
At the hearing, Petitioner testified that at the end of trial, the jurors were sworn in,
the jury was dismissed for lunch, and when they returned an alternate juror was in the
jury box and an original juror was seated in the gallery. Susan McLean, Petitioner’s
prosecutor, testified that no such thing happened; the jurors were sworn in,
sequestered, and returned to court to render their verdict. Ms. McLean testified the trial
judge always polled the jurors by name and the allegedly replaced juror was polled, as
shown in the trial record. (Doc. 11-4 at 42-47).
Regarding Petitioner’s inability to form specific intent, Dr. Susan Cave testified on
behalf of Petitioner. (Doc. 11-3 at 17). Dr. Cave stated that had she been called as an
expert witness in Petitioner’s trial, she would have testified that Petitioner could not form

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specific intent. Id. at 31-32. On cross examination, Dr. Cave opined that given her
review of Petitioner’s records, it was “highly likely” that Petitioner’s “ability to form
specific intent was likely impaired.” Id. at 37. Dr. Cave’s ultimate opinion, “to a
reasonable degree of certainty,” is that Petitioner was not capable of forming specific
intent to kill. Id. at 52.
Sheila Lewis, an attorney who represented Petitioner on appeal and whom the
court qualified as an expert witness, testified that Petitioner’s trial counsel’s failure to
secure an expert like Dr. Cave was not a tactical decision. (Doc. 11-4 at 7). Rather,
given his proffered jury instructions, his statements as to his own intent, and the motion
for a new trial, trial counsel ineffectively failed to follow through on presenting a defense,
which prejudiced Petitioner. Id. at 12-13, 17-23. On questioning by the state court, Ms.
Lewis agreed that a reasonable trial counsel could have decided to abandon the
inability to form specific intent theory in favor of the self-defense theory, but she
maintained that is not what Petitioner’s trial counsel did in this case. Id. at 29-36.
Regarding blood spatter analysis, two expert witnesses testified: Lawrence
Renner and Arthur Ortiz, who was the state’s expert at Petitioner’s trial. Mr. Renner
testified that, given the blood spatter evidence, the victim was within two to three feet of
the porch overhang in front of Petitioner’s home. (Doc. 11-3 at 62-63). Mr. Renner
reasoned that “back spatter,” which is blood coming out of a bullet entrance wound,
travels up to two to three feet maximum, and since there was blood on porch overhang,
the victim must have been within two to three feet of the porch. Id. Mr. Renner stated
that no blood stains were found on Petitioner’s gun, but that could have resulted from
stains rubbing off onto the couch cushion where the gun was found. Id. at 64. As for the

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victim’s gun, Mr. Renner stated her gun must have been out of her waistband and in a
horizontal position when she was shot; however the physical evidence does not show
when the victim drew her gun. Id. at 67-68. Finally, Mr. Renner opined that Petitioner’s
arm was likely totally extended when he pulled the trigger, rather than pointing up or
down, based on the horizontal angle of the victim’s head wound. Id. at 83-84. Mr.
Renner stated that he and Mr. Ortiz did not disagree on much–just the distance back
spatter may travel. Id. at 75-76, 77.
Mr. Ortiz began his testimony by opining that, based on the lack of gun powder
residue or singeing on the victim’s clothes, her arm was not outstretched or close to
Petitioner when she was shot. (Doc. 11-4 at 51-53). Mr. Ortiz also opined that several
pieces of evidence, taken together, indicated Petitioner stepped out of the house before
shooting the victim: that Petitioner was taller than the victim, that there was a six inch
step up into the house from the porch, and that the victim’s head wound was more or
less horizontal. Id. at 60-61. Regarding back spatter, Mr. Ortiz stated he was trained
that back spatter can travel up to four feet, rather than two or three as Mr. Renner
testified. Id. at 62. Finally, Mr. Ortiz stated that, in his opinion, it was more likely the
victim was not the aggressor because her car engine was running and a set of keys was
found by her body. Id. at 65. To Mr. Ortiz, this showed the victim was more likely
returning the set of keys instead of there threatening Petitioner. Id.
The last witness to testify was former New Mexico Supreme Court Justice Paul
Kennedy.1 In response to testimony by Ms. Lewis, Mr. Kennedy testified regarding the

1

The record does not include a transcript of Mr. Kennedy’s testimony. The record indicates he was set to
testify on April 15, but the hearing was continued to Monday, April 18. (Doc. 11-4 at 76). This description
of Mr. Kennedy’s testimony is taken from Petitioner’s petition for writ of certiorari to the New Mexico
Supreme Court. (Doc. 11-5 at 27-37).

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inherent tension between defenses based on self-defense versus an inability to form
specific intent. (Doc. 11-5 at 33). Mr. Kennedy explained it can be difficult to explain to
jurors how one can have the inability to form specific intent while still intending to
engage in self-defense. Id. In Mr. Kennedy’s opinion, trial counsel’s decision to abandon
the incapacity defense was a reasonable trial tactic, and the self-defense theory was
stronger than the incapacity theory. Id.
On June 30, 2016, the state court issued findings of fact and conclusions of law
denying Petitioner’s state petition. Id. at 17. Under “Findings of Fact,” the state court
wrote that although Petitioner raised several issues in his state petition, he only
presented evidence on three of the raised issues: ineffective assistance for failure to
present expert testimony regarding Petitioner’s ability to form specific intent, ineffective
assistance for failure to present a rebuttal blood spatter expert, and denial of Petitioner’s
right to be present at all stages of trial. (Doc. 11-5 at 18). First, the state court recounted
the conflicting testimony between Petitioner and the original trial prosecutor regarding
the allegedly replaced juror. Id. at 19. Regarding the blood spatter experts, the state
court found that trial counsel’s failure to call a blood spatter expert was a rational trial
decision given the favorable testimony from Mr. Ortiz; therefore, Petitioner was not
prejudiced by his trial counsel’s failure to call his own blood spatter expert. Id. at 20.
Similarly, the state court determined that a reasonably competent trial counsel could
have chosen not to pursue the incapacity theory in order to avoid conflict with the selfdefense theory, making that decision a legitimate trial tactic. Id. at 23.
Under “Conclusions of Law,” the state court held that no juror was replaced
outside of Petitioner’s presence; trial counsel’s failure to call a blood spatter expert was

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neither ineffective nor prejudicial; and, similarly, trial counsel’s failure to call a medical
expert was neither ineffective nor prejudicial. Id. at 24-25. More specifically, the state
court concluded that a claim that Petitioner did or could not form specific intent was not
credible and that Petitioner’s trial counsel could have determined that choosing not to
pursue the incapacity defense was a better strategy. Id.
Given the facts and evidence presented to the state court, the Court finds
Petitioner fairly presented his claims as to ineffective assistance of counsel related to
expert witness testimony on his ability to form specific intent and rebuttal blood spatter
testimony, as well as his claim that a juror was replaced outside his presence.
Witnesses testified as to Petitioner’s incapacity defense, blood spatter analysis, and
whether or not a juror was replaced, giving the state court an opportunity to apply legal
analysis to the facts underlying Petitioner’s claims. The Court therefore finds Petitioner
exhausted these claims.
c. Petitioner has not exhausted all claims in the Petition
After comparing the state court record and the Petition, the Court must conclude
that Petitioner has failed to completely exhaust all of the claims in the Petition. Although
Petitioner previously alleged ineffective assistance of counsel due the absence of a
rebuttal crime scene reconstruction expert and DNA testing, (Doc. 11-2 at 27-28),
Petitioner did not factually develop these claims before the state court. No witnesses
testified and no witness was presented at the state petition hearing regarding these
issues. Although a rebuttal blood spatter expert testified, the Petition focuses on a DNA
analyst and crime scene reconstruction expert. See (Doc. 1 at 8, 20-21). As discussed,
exhaustion requires presenting both a legal claim and its supporting factual allegations.

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Wilson, 577 F.3d at 1294. Consequently, Petitioner has not exhausted his claims
regarding a crime scene reconstruction expert or DNA testing expert.
Further, some of Petitioner’s claims have not been presented to state courts as
required. See id. For instance, Petitioner alleges he was denied due process because
the trial court denied a jury instruction regarding adequate provocation for self-defense.
(Doc. 1 at 8, 32-33). However, Petitioner did not raise this argument on direct appeal or
in collateral proceedings. Petitioner also did not raise his arguments regarding the
prosecution’s alleged withholding or destruction of exculpatory evidence, his trial
counsel “guaranteeing” acquittal, denial of compulsory process, or any of the other
arguments or allegations Petitioner raises under the “Additional Supporting Facts”
heading in the Petition. Id. at 15-33. The Court therefore finds that Petitioner has not
exhausted all the claims he raises in the Petition.
d. Which of the four options the Court should pursue
To summarize, the Court finds Petitioner has exhausted the following claims: (1)
ineffective assistance of counsel regarding failure to call an expert witness to testify on
Petitioner’s inability to form specific intent; (2) denial of Petitioner’s right to be present at
all stages of trial; (3) the trial court’s denial of a jury instruction regarding inability to form
specific intent; and (4) the trial court’s denial of a jury instruction regarding defense of
habitation. The Court finds Petitioner has failed to exhaust any other claim in his
Petition, including ineffective assistance of counsel for failure to call a rebuttal crime
scene reconstruction expert or conduct DNA testing, the trial court’s refusal to give a
jury instruction regarding sufficient provocation and self-defense, the state prosecutor’s
destruction or withholding exculpatory evidence, or any additional allegation contained

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in the “Additional Supporting Facts” section of the Petition. The Petition is therefore
“mixed,” in that it contains both exhausted and unexhausted claims.
As discussed earlier, the Court has four options when deciding a mixed petition:
(1) dismiss the entire petition without prejudice; (2) stay the petition and hold it in
abeyance while the petitioner exhausts the unexhausted claims; (3) allow the petitioner
to dismiss the unexhausted claims and move forward only with the exhausted claims; or
(4) ignore the exhaustion requirement and deny the petition on the merits if none of the
claims are meritorious. Fairchild, 579 F.3d at 1156. The Court may not dismiss
unexhausted claims without prejudice and deny exhausted claims on the merits. Wood
v. McCollum, 833 F3d. 1272, 1274 (10th Cir. 2016).
In his Reply, Petitioner asks that the Court either decide the Petition on the
merits or allow him to delete the unexhausted claims. (Doc. 16 at 23). Petitioner states
he wishes to avoid another multi-year process in the state courts. Id. at 22. Although
Petitioner requests the Court overlook any exhaustion-related deficiency and decide the
Petition on the merits, the Court may only deny the Petition on the merits; the Court may
not grant a mixed Petition. § 2254(a)(2) (“An application for a writ habeas corpus may
be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”). Further, if Petitioner deletes his
unexhausted claims, they will be deemed abandoned, and any subsequent petition that
raises those claims will be considered a second or successive petition under 18 U.S.C.
§ 2244(b)(2). See Tapia v. Lamaster, 172 F.3d 1193, 1195-96 (10th Cir. 1999).
Respondents do not oppose giving Petitioner the option of dismissing the Petition

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without prejudice so he may fully exhaust his claims or deleting the unexhausted claims
and proceeding with the exhausted claims only. (Doc. 11 at 13-14).
Given the law and the parties’ expressed positions, the Court recommends giving
Petitioner an opportunity to voluntarily dismiss the unexhausted claims currently in the
Petition or file an amended Petition containing only exhausted claims. If Petitioner does
not amend his Petition or delete the unexhausted claims, the Court recommends
dismissing the Petition without prejudice.
III.

Conclusion
For the foregoing reasons, the Court finds that the Petition is mixed, as it

contains both exhausted and unexhausted claims. The Court recommends giving
Petitioner an opportunity to file an amended petition or voluntarily dismiss his
unexhausted claims.
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
UNITED STATES MAGISTRATE JUDGE

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