Ellis v. Attorney General State of New Mexico

Filing 32

REPORT AND RECOMMENDATIONS re 30 MOTION to Withdraw filed by Gene Gilbert Ellis, 29 MOTION for Extension of Time to File filed by Gene Gilbert Ellis by Magistrate Judge Kevin R. Sweazea. Objections to R&R due by August 13, 2019. 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.
RAYMOND SMITH, Warden, and
ATTORNEY GENERAL STATE OF
NEW MEXICO,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Petitioner’s motion for an extension of time
to file a reply and motion to withdraw his 28 U.S.C. § 2254 petition for a writ of habeas corpus
and stay this matter. (Docs 29 & 30). In the latter filing, Petitioner explains he has “[n]ew
evidence based on conflicting and perjured testimony for search warrant affidavit and not
applying the adverse interest rule when state failed to provide defense with alleged victim in case
for an interview and then revealing the witness would not testify.” (Doc. 30, at 1). Petitioner
asks the Court to hold the matter in abeyance while he returns to the state courts to exhaust what
he calls a claim of prosecutorial misconduct. See 28 U.S.C. § 2254(b)(1)(A). As for the former
motion, Petitioner asks to file a reply in support of his petition following Respondents’ amended
answer. (Doc. 29). Pursuant to an order of reference from United States District Judge Judith C.
Herrera, see 28 U.S.C. § 636; (Doc. 3), the Court recommends that Petitioner be allowed to file a
final reply in support of his petition, but that his request to stay be denied.
Courts may, in limited circumstances, stay a habeas corpus petition and hold it in
abeyance if the petitioner shows “good cause for his failure to exhaust, his unexhausted claims

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are potentially meritorious, and there is no indication petitioner engaged in intentionally dilatory
tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). The term “good cause” includes confusion
about whether a state petition would be timely, ineffective assistance of post-conviction counsel,
or “any external objective factor that cannot fairly be attributable” to the petitioner. Doe v. Jones,
762 F.3d 1174, 1182 (10th Cir. 2014) (quotation omitted). The petition must, however, go
beyond “merely list[ing] the new claims [the inmate] wants to bring” and instead must “poffer[]
a convincing reason for a stay or satisfying the other Rhines requirements.” Kincaid v. Bear, 687
Fed. Appx. 676, 679 (10th Cir. 2017). Even where good cause exists, the Court “abuses its
discretion if it grants a stay when the petitioner’s claims are plainly meritless.” Rhines, 544 U.S.
at 277-78.
From what the Court can discern, Ellis now alleges prosecutorial misconduct. He appears
to base that claim on his discovery of (a) the district attorney’s withholding exculpatory Brady
material when the prosecutor turned over on January 25, 2019 documents concerning his case
but did not provide affidavits for search warrants that Ellis says he obtained through other means
and that show the prosecution obtained a search warrant through perjury; and (b) a failure to
apply the “adverse interest rule” when the prosecutor neglected to provide Ellis a victim
interview and then revealed the victim would not testify. (Doc. 30). On November 20, 2019, the
Court ruled that Ellis knew that the victim would not testify before he filed his petition in federal
court. (Doc. 20) (adopting July 9, 2018 proposed findings and recommended disposition). Thus,
Ellis’s second basis is not newly discovered and a reason for a stay.
As for the first basis, the Court concludes Ellis’s claim is too vague to meaningfully
assess. Ellis does not identify exactly what information was perjured, what specific affidavit(s)
are at issue, where in the record the affidavit(s) are, who authored the affidavits, when Ellis

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obtained the affidavits, and the basis for his determination that that the search warrant was the
product of perjury. Without making any type of factual, reasoned proffer for the perjury aspect
of the claim of prosecutorial misconduct, Ellis has not carried his burden to obtain a stay while
he returns to the state courts. See Roebuck v. Medina, 2010 U.S. Dist. LEXIS 104839, at *20 (D.
Colo. Oct. 1, 2010) (explaining that the petitioner’s claims “of newly-discovered evidence are
vague and conclusory” and do not include “the nature of the evidence, when it was discovered,
or what type of federal constitutional claim the evidence supports” and concluding “without
such information, the Court is unable to determine that Applicant's claim based on newly
discovered evidence is potentially meritorious”).
Finally, to ensure that Ellis may fully respond to the amended answer, the Court
concludes that motion for an extension to file a reply brief styled as a motion to file objections on
the docket, should be granted.
IT IS, THEREFORE, RECOMMENDED that Ellis’s motion to withdraw and stay
petition (Doc. 30) be DENIED.
IT IS FURTHER RECOMMENDED that Ellis be permitted to file a reply to
Respondent’s amended answer and his motion for extension (Doc. 29) be GRANTED.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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