Ramirez v. Tafoya-Lucero, et al.

Filing 21

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 1 & 7 Petition & Amended Petition for 2254 Relief filed by Irvin Rodolfo Ramirez. Objections to R&R due by 7/17/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)

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

IRVIN RODOLFO RAMIREZ,
Petitioner,
No. 2:17-cv-00579-MCA-KRS
v.
ALISHA TAFOYA-LUCERO,
Acting Warden, and ATTORNEY
GENERAL STATE OF NEW MEXICO, 1
Respondents.
PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
Irvin Ramirez, an inmate confined at the Penitentiary of New Mexico, petitions the Court
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ramirez challenges his 2011
convictions for first-degree murder, conspiracy to commit armed robbery, tampering with
evidence, arson, and receipt of stolen property contrary to New Mexico law 2 following a jury
trial in the Third Judicial District Court for Dona Ana County. 3 Broadly, Ramirez asserts (1) his
trial attorney was ineffective; (2) the prosecutor engaged in misconduct; (3) his life sentence
amounts to cruel and unusual punishment; (4) his residence was unlawfully searched and he was
unconstitutionally arrested; (5) his due process rights were violated; and (6) he was denied a fair
trial. (Docs. 1 & 7). Ramirez’s jailor, Alisha Tafoya-Lucero, contends Ramirez has not afforded
1

Ramirez has named the “Attorney General State of New Mexico.” Typically, the proper respondent in Section
2254 case is the warden of the facility at which the petitioner is held. Only when the petitioner is subject to a state
court judgment, but not in custody must the petitioner name the state attorney general. See Rule 2(a), Rules
Governing Section 2254 Cases in the United States District Courts. It appears Ramirez is already in custody. As
reflected below, the Court recommends that the Attorney General be dismissed from this action.
2
See N.M. Stat. Ann. §§ 30-2-1(A)(2) (felony murder, a capital offense); 30-16-2 (conspiracy to commit arson, a
third-degree felony); 30-22-5 (tampering with evidence, a third-degree felony); 30-17-5(A) (arson over $500, a
fourth degree felony); 30-16-11 (receiving stolen property over $2500, a third-degree felony).
3
Ramirez was also convicted of armed robbery. The New Mexico Supreme Court reversed this conviction on direct
review because it violated the Double Jeopardy Clause.
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the New Mexico courts a first opportunity to correct alleged constitutional deficiencies as to
several of Ramirez’s claims. As such, Tafoya-Lucero says the Court may dismiss Ramirez’s
petition for failure to exhaust available state-court remedies. Acting pursuant to an order of
reference, see 28 U.S.C. § 636(b)(1)(B); (Doc. 20), the Court has considered the parties’
submissions as well as the record and agrees that Ramirez has not exhausted remedies as to each
of his claims. The Court, therefore, RECOMMENDS that Ramirez’s petition be DISMISSED
or Ramirez, at his election, be permitted to proceed in this Court only as to those claims he has
properly exhausted. If Ramirez chooses the latter, he must voluntarily dismiss those challenges
he has not presented to the New Mexico Supreme Court.
DISCUSSION
Federal habeas corpus relief is unavailable to an inmate unless the inmate has exhausted
state court remedies. See Day v. McDonough, 547 U.S. 198, 205 (2006). Section 2254 prohibits
the Court from granting “an application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court” until the inmate exhausts, there is no process
for exhausting, or “circumstances exist that render such process ineffective to protect the rights
of the [inmate].” 28 U.S.C. § 2254(b)(1). The burden is on the inmate to show exhaustion or
some exception thereto. McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009). Ramirez does
not contend New Mexico lacks available remedies or that the relief afforded does not protect his
rights. Thus, the question is whether Ramirez adequately pursued those remedies.
An inmate properly exhausts when he “fairly presents” his federal constitutional claims to
the state courts. See Picard v. Connor, 404 U.S. 270, 275 (1971). As a matter of comity,
exhaustion allows the state courts one full “opportunity to pass upon and correct alleged
violations of [their] prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

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curiam) (internal quotation marks and citation omitted). “One full opportunity” means the
inmate must present his federal challenges “to the highest state court, either by direct review of
the conviction or in a post-conviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994) (citation omitted). Additionally, the inmate must identify the “substance
of a federal habeas corpus claim” to adequately exhaust. See Picard, 404 U.S. at 278. An
inmate complies, substantively, when he references “a specific federal constitutional guarantee,
as well as [provides] a statement of the facts that entitle[s] the petitioner to relief.” Gray v.
Netherland, 518 U.S. 152, 162-63 (1996).
Ramirez made one “presentation” to the New Mexico Supreme Court. On direct review,
Ramirez asserted: (1) the jury was improperly instructed on the murder and arson counts 4; (2) his
trial counsel was ineffective for not objecting to the erroneous jury instructions and allowing a
defense investigator to turn over inculpating evidence; (3) the trial court erroneously admitted a
fingerprint lab report that had not been disclosed to the defense and permitted a defense
investigator to testify; (4) the prosecutor engaged in misconduct by withholding discovery; and
(5) insufficient evidence supported Ramirez’s conviction. (Doc. 18-1, at 50-90). Although
Ramirez did collaterally challenge his convictions in the state district court, he did not pursue
review by state’s highest court. See N.M. Rule Ann. 5-802(L) (detailing the procedure for filing
a petition for certiorari in the New Mexico Supreme Court following the trial court’s denial of
habeas relief).
Comparing the issues raised in this federal action, which include challenges (1) through
(5) above, to those presented to the New Supreme Court, Ramirez has not exhausted available

4

The improper instruction claim on felony murder relates both Jury Instruction No. 5 and more generally that
Ramirez was denied due process when the jury was given an instruction that “created confusion between the armed
robbery charge and murder charged and . . . did not clearly delineate the basis for second degreed versus 1st degree
murder.”
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state remedies for his (1) attorney’s alleged ineffectiveness as it relates to (a) following through
with a motion to change venue; (b) not calling “personal and “forensic” witnesses; (d) preventing
the jury from being instructed on armed robbery; (e) socializing with the prosecutor; (f) being
absent when a jury note was read; (f) reviewing of discovery; (2) claim of cruel and unusual
punishment because of his age; (3) challenge to the lawfulness of the warrantless search of his
residence and attendant arrest; (4) assertion that two jurors were impartial and denied Ramirez
the right to a fair trial; (5) due process challenge to the jury instructions allegedly confusing
delineation between murder and armed robbery; and (6) claim of prosecutorial misconduct for
socializing with defense counsel. (Compare Docs. 1, at 5-27 & 7, at 5-29 with Doc. 18-1, at 5090).
Because Ramirez’s application for habeas relief in this Court contains both exhausted and
unexhausted claims, it is considered a “mixed petition.” When confronted with a mixed petition,
the Court may not simply dismiss the unexhausted claims and reach the merits of those that have
been fully and fairly presented to the state court. See Wood v. McCollum, 833 F.3d 1272, 1274
(10th Cir. 2016). Instead, the Court must (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). Typically, a stay abating the petition is reserved for instances
where the inmate shows “good cause” for failing to present the claims before the state court in
the first instance, and the unexhausted claims are not “plainly meritless.” Rhines v. Weber, 544
U.S. 269, 277 (2005).

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In view of the available options, the Court recommends that Ramirez’s petition be
dismissed in its entirety unless Ramirez voluntarily dismisses the unexhausted claims. A stay is
not appropriate because Ramirez has not made any showing of good cause. Nor does the Court
believe it advisable or beneficial to ignore the exhaustion requirements and address the merits of
the claims. An appropriate balance, therefore, is to allow Ramirez to determine whether he
would like to proceed only with the exhausted claims by filing a written notice dismissing the
remainder of his challenges. If Ramirez elects this option, he should know he likely will forfeit
the unexhausted claims altogether. See 28 U.S.C. § 2244(b)(1); Tapia v. Lemaster, 172 F.3d
1193, 1195 (10th Cir. 1999) (a petitioner who elects to proceed only on exhausted claims must
meet the requirements for filing a successive petition to later raise the unexhausted challenges).
Also, if Ramirez chooses not to dismiss the unexhausted claims, the Court’s recommendation, if
adopted, means dismissal of the petition without prejudice. Although Ramirez could return to
the New Mexico courts to present his claims, Ramirez may face statute of limitations problems
for any future habeas petition in this Court. See 28 U.S.C. § 2244(d)(1) (imposing a one-year
limitation period from the date the judgment becomes final after direct review).
CONCLUSION
AND RECOMMENDATION
For the reasons stated above, Ramirez has not exhausted available state remedies for all
of his claims.
The Court RECOMMENDS dismissal of Ramirez’s mixed petition in its entirety subject
to Ramirez first being permitted to voluntarily dismiss his unexhausted claims (and thus allowing
the Court to reach the merits of the exhausted claims) by filing a document so stating within
thirty days from the Court’s adoption of this recommendation.

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IT IS FURTHER RECOMMENDED that Respondent Attorney General State of New
Mexico be dismissed as an improperly named party.

_________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION.
A PARTY MUST FILE ANY
OBJECTIONS WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED 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. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.

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