Ellis v. Attorney General State of New Mexico

Filing 17

REPORT AND RECOMMENDATIONS re 13 MOTION to Stay, 1 Petition for 2254 Relief filed by Gene Gilbert Ellis by Magistrate Judge Kevin R. Sweazea. Objections to R&R due by July 23, 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

GENE GILBERT ELLIS,
Petitioner,
No. 2:18-cv-00012-JCH-KRS
v.
ATTORNEY GENERAL STATE
OF NEW MEXICO; and
RAYMOND SMITH,
Warden Lea County Correctional Facility,
Respondents.

PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
State inmate Gene Ellis petitions the Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. 1). Ellis challenges the constitutionality of his convictions following a
guilty plea for kidnapping, criminal sexual penetration, criminal sexual contact of a minor,
aggravated burglary, aggravated assault, and bribery of a witness. (Id., at 16-19). Primarily, Ellis
asserts his trial attorney was ineffective because counsel allegedly advised and promised Ellis his
sentence would be capped at fifteen years if he pleaded guilty. (Id., at 16-19). Ellis heeded his
lawyer’s advice to plead guilty, but received a forty-three-year term of incarceration and up to a
lifetime of parole. (Id.). Ellis also claims he was convicted in violation of the Double Jeopardy
Clause. (Id.). The parties agree that Ellis’s petition in this Court is “mixed.” (Compare Doc. 11
with Doc. 13). It raises one ineffective-assistance-of-counsel claim that Ellis did not properly
exhaust by presenting the issue to and requesting relief from the New Mexico Supreme Court:
whether Ellis’s lawyer was constitutionally deficient for failing to inform Ellis prior to his plea

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that the thirteen-year-old victim, M.W., was unwilling to cooperate with the prosecution and had
relocated. (Doc. 11).
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).
Here, Ellis asks and has separately moved for a stay and abeyance.
The Court may grant a stay and hold a petition for a writ of habeas corpus in abeyance
only in 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). “Good cause” for failure to exhaust includes
confusion about whether a state petition would be timely, ineffective assistance of postconviction counsel, or “any external objective factor that cannot fairly be attributable” to the
state inmate. Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quotation omitted). To
establish good cause, Ellis must do more than “merely list the new claims he wants to bring,
without proffering a convincing reason for a stay or satisfying the other Rhines requirements.”
Kincaid v. Bear, 687 Fed. Appx. 676, 679 (10th Cir. 2017).
Ellis does not argue he was confused about timeliness or that post-conviction counsel was
ineffective. Instead, he contends that the victim’s relocation and lack of cooperation constitute

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newly discovered evidence that excuse exhaustion. Although the Court has little trouble
accepting newly discovered evidence as good cause favoring a stay, the information here was
known to Ellis months before he filed his petition in this Court on January 4, 2018. On October
10, 2017, Ellis, pro se, moved in the state district court to set aside his guilty plea because
“defense counsel . . . has proven ineffective . . . by failing to advise the defendant that the alleged
victim in the above entitled cause was refusing to cooperate with the prosecution and had the
defendant known he would not have pled guilty and insisted on going to trial.” (Doc. 11-5, at
78). Thus, any uncooperativeness is not newly discovered evidence that amounts to good cause
for a stay or something beyond Ellis’s control that prevented him from following the rules.
Nonetheless, Ellis repeatedly points out he has no training in the law and will suffer
prejudice because the statute of limitations likely will expire if the matter is not stayed. But lack
of legal expertise does not explain how he was unable to exhaust available remedies in the state
court before filing the instant petition or excuse the requirement that he do so. See Francis v.
Pryor, 2014 U.S. Dist. LEXIS 10057, at *8 (D. Kan. Jan. 28, 2014) (explaining that “[a] pro se
litigant’s allegation that he failed to exhaust state court remedies due to his unfamiliarity with
legal process or lack of legal knowledge, is not sufficient to establish “good cause”). As for
prejudice, had Ellis pursued a collateral challenge as allowed by New Mexico law, the federal
limitation period would have been tolled and Ellis would have avoided the predicament he now
faces. See Rhines, 544 U.S. at 274-75 (explaining that a “properly filed application for State
post-conviction or other collateral review” tolls the statute of limitation, 28 U.S.C. § 2244(d)(2)).
Notwithstanding Ellis’s professed lack of legal training, the Court determines a stay and
abeyance of the case and habeas petition are not warranted.

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In view of the remaining options for addressing mixed habeas challenges, the Court
recommends that Ellis’s petition be dismissed in its entirety unless Ellis voluntarily dismisses the
unexhausted claim. The Court does not believe it advisable or beneficial to ignore the
exhaustion requirements and address the merits of the claim. An appropriate balance, therefore,
is to allow Ellis to determine whether he would like to proceed only with the exhausted claims
by filing a written notice dismissing his remaining challenge. As Ellis acknowledges, he likely
will forfeit federal review of the unexhausted claim 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). If Ellis chooses not to dismiss the unexhausted claims, the Court’s
recommendation, if adopted, means dismissal of the petition without prejudice. Although Ellis
could return to the New Mexico courts to present his claim, Ellis faces 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).
In sum, Ellis has not exhausted available remedies in the New Mexico courts for each
claim he has presented in this Court. Further, Ellis has not established good cause for a stay and
abeyance of this matter while he returns to the state court to exhaust. Although his petition for a
writ of habeas corpus is defective, Ellis should be permitted to voluntarily dismiss his
unexhausted claim to permit the Court to reach the merits of his other constitutional challenges.
IT IS, THEREFORE, RECOMMENDED that Ellis’s motion for a stay and abeyance
(Doc. 13) be DENIED.
IT IS FURTHER RECOMMENDED that Ellis’s mixed petition for a writ of habeas
corpus (Doc. 1) be DISMISSED in its entirety subject to Ellis first being permitted to voluntarily

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dismiss his unexhausted claim (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.

_________________________
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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