Ellis v. Attorney General State of New Mexico

Filing 43

ORDER by District Judge Judith C. Herrera Adopting Magistrate Judge's Proposed Findings and Recommended Disposition denying Petitioner's 1 Petition for 2254 Relief. (baw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GENE GILBERT ELLIS III,
Petitioner,
vs.

No. 2:18-CV-00012-JCH-KRS

RAYMOND SMITH, Warden, and
ATTORNEY GENERAL STATE OF
NEW MEXICO,
Respondents.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on (1) Petitioner Gene Gilbert Ellis, III’s Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1); (2) Respondents’ amended answer
addressing the merits of the habeas petition (Doc. 28); (3) the Magistrate Judge’s Proposed
Findings and Recommended Disposition (Doc. 34) (“PFRD”), filed February 23, 2021; and (4)
Petitioner’s objections to the PFRD, which were timely filed1 on May 7, 2021 (Doc. 42). Having
conducted a de novo review of those portions of the PFRD to which Petitioner objected, the Court
adopts the PFRD, overrules the objections thereto, denies Petitioner’s § 2254 habeas petition, and
dismisses this action with prejudice.
I.

STANDARD OF REVIEW

When a party objects to a PFRD, the Court “shall make a de novo determination of those
portions . . . to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The party must make specific
objections; general or conclusory objections do not preserve review. See United States v. 2121 E.

1

Petitioner’s objections were received on May 12, 2021, a few days past the extended deadline set by the Magistrate
Judge for the filing of objections. (See Doc. 41). Petitioner has included a certificate of service stating that he placed
his objections into the outgoing mail at the Otero County Prison Facility on May 7, 2021. (Doc. 42 at 20). The Court
therefore considers the objections to be timely. See Houston v. Lack, 487 U.S. 266, 276 (1988).

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30th St., 73 F.3d 1057, 1060-61 (10th Cir. 1996). “[T]he filing of objections . . . enables the district
judge to focus attention on those issues—factual and legal—that are at the heart of the parties’
dispute,” and only objections that clearly “focus the district court’s attention” on the central
disputes will be considered. Id. at 1059-1060. Further, “[i]ssues raised for the first time in
objections to the magistrate judge’s recommendation are also deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
II.

ANALYSIS

A. Exhaustion and Procedural Default
One of the claims asserted by Petitioner in Ground Three of his petition is that his
kidnapping conviction is due to be vacated as incidental to his conviction(s) for criminal sexual
penetration. (See Doc. 1 at 17-18). When Petitioner first raised this argument in his amended statecourt habeas petition (see Ex. AA at 21-22),2 the state court ruled that this claim was barred
because it “was not raised on appeal” (see Ex. GG at 2-3). In seeking certiorari review from the
New Mexico Supreme Court, Petitioner argued in conclusory fashion that his claim was “barred
from direct appeal due to lack of record” (Ex. HH at 7), but his petition for writ of certiorari was
denied (see Ex. II). The Magistrate Judge, relying in part on Duncan v. Kerby, 851 P.2d 466, 468
(N.M. 1993), similarly concluded that this claim was procedurally defaulted because Petitioner
had not first raised the argument on direct appeal, because he has not shown “that the facts
underlying this claim were not known or available to him at the time of his trial,” and because
Petitioner has not raised any of “the limited exceptions to the Duncan rule.” (Doc. 34 at 6-8).

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As was the case in the Magistrate Judge’s PFRD (see Doc. 34 at 2 n.1), the Court’s citations to exhibits should be
understood as referring to the exhibits to Respondents’ amended answer unless otherwise stated. The Court
overrules Petitioner’s objection that this practical method of citation to the state-court record amounts to an
improper “concession to the state.” (See Doc. 42 at 4).
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Petitioner objects that the rule discussed in Duncan “does not apply because Petitioner took
a plea.” (Doc. 42 at 5). Petitioner does not elaborate on this argument, and the Court is aware of
no authority providing that convictions resulting from a plea agreement are categorically excluded
from the rule that a criminal defendant in New Mexico is “precluded from raising [an] issue in
habeas corpus proceedings” where he “should have raised [that] issue on appeal” because “the
facts submitted were known or available” to him prior to his conviction. See Duncan, 851 P.2d at
468; cf., e.g., Baldonado v. N.M. Dep’t of Corr., No. 13-cv-00573 LH/SMV, 2013 WL 12328860,
at *5 (D.N.M. Nov. 21, 2013) (applying Duncan rule to find procedural default on claim not
presented on appeal following plea agreement), PFRD adopted, (Doc. 15) (D.N.M. Dec. 12, 2013).
Under a liberal construction, Petitioner’s objection may be understood to argue—as he did
before the New Mexico Supreme Court (see Ex. HH at 7)—that he is entitled to one of the limited
exceptions to the Duncan rule, which applies “when an adequate record to address the claim
properly was not available on direct appeal.” See Duncan, 851 P.2d at 468. However, as the
Magistrate Judge observed, Petitioner has not developed that argument at any point during his state
or federal habeas proceedings. (See Doc. 34 at 7-8 n.3). The Magistrate Judge also correctly noted
that Petitioner has never stated which purported facts relevant to his incidental-restraint argument
were unknown or unavailable to him at the time of his conviction, much less shown that his ability
to appeal on that basis was precluded due to their absence. (See id. at 7-8 & n.3). Finally, Petitioner
offers nothing to overcome the Magistrate Judge’s conclusion—which the Court agrees with and
adopts—that Petitioner has not shown cause, actual prejudice, or that any risk of a fundamental
miscarriage of justice would occur if his claim were barred. See, e.g., Coleman v. Thompson, 501
U.S. 722, 750 (1991).

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After a de novo review in light of Petitioner’s objections, the Court concludes that there is
no basis to modify or reject the Magistrate Judge’s recommendation that Petitioner’s incidentalrestraint challenge to his kidnapping conviction be deemed procedurally barred. Petitioner’s
objections on this point are overruled.
B. Ineffective Assistance of Counsel
Petitioner objects to the Magistrate Judge’s recommendation that his two remaining
ineffective-assistance claims be dismissed.3 His core objection as to both claims centers on his
argument that the state court’s factual determinations were “unreasonable,” characterizing those
findings as “Petitioner . . . being called a liar [while] trial counsel’s statements are taken as truth”
and arguing that “[i]t could very reasonably be determined that Petitioner did not think he would
receive the sentence he got.” (See Doc. 42 at 11). Having conducted a de novo review of
Petitioner’s filings and the state-court record, the Court agrees with the Magistrate Judge’s
conclusion that Ellis has not submitted clear and convincing evidence to overcome the presumption
of correctness that must be afforded to the state court’s factual findings. See 28 U.S.C.
§ 2254(e)(1). Petitioner’s objection on this ground is overruled.
Petitioner also appears to challenge the Magistrate Judge’s proposed finding that “there is
essentially no evidence to suggest that [Petitioner] would have gone to trial but for [his attorney’s]
allegedly deficient advice.” (Doc. 34 at 15). The apparent crux of Petitioner’s objection is his
allegation that the record “contradicts” any assertion that his victim would testify at trial and his
suggestion that, had he known of the victim’s noncooperation with the prosecution, he would have
chosen to proceed to trial rather than plead guilty. (See Doc. 42 at 11-12). In truth, Petitioner has

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Following the Magistrate Judge’s finding that a third ineffective-assistance claim was unexhausted (Doc. 17),
Petitioner moved to voluntarily dismiss that claim (Doc. 23), and the Court granted that motion (Doc. 25). To the
extent that Petitioner now objects to that dismissal or the Court’s earlier denial of his motion to stay (see, e.g., Doc.
42 at 5, 10-12), such objections are untimely and otherwise improper. See, e.g., 28 U.S.C. § 636(b)(1).
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pointed to nothing in the record showing that the victim would not testify, save for his own
unexhausted and previously dismissed ineffective-assistance claim alleging as much. (See Doc. 1
at 16). On the contrary, when Petitioner first raised this argument in a motion to set aside his plea
(see Ex. JJ), the state trial court found that there was “no proof or evidence that the victim witness
was uncooperative with the prosecution” (Ex. KK), and Petitioner has offered no additional
evidence in support of this allegation since that time. But even if this were not so, the record
supports the conclusion that both Petitioner and his attorney at least believed at the time of his plea
“that [the victim] would be testifying to the acts that occurred,” given that his attorney stated as
much at sentencing. (See Ex. BB at 4).4 This point, and the other aspects of the record cited in the
PFRD, support the Magistrate Judge’s proposed finding that Petitioner would not have gone to
trial in the absence of counsel’s allegedly deficient assistance regarding the length of his prison
sentence and parole term. (See Doc. 34 at 13-15, 16-18). The Court therefore adopts this finding
as its own, and Petitioner’s objection on this ground is overruled.
Petitioner next alleges that at his sentencing, “the prosecution stood before the court and
admitted they lacked sufficient evidence to prosecute,” which he suggests undermines the
Magistrate Judge’s proposed finding regarding the “likelihood of a guilty verdict.” (Doc. 42 at 12)
(quoting Doc. 34 at 17). Again, Petitioner points to nothing in the record to support this assertion
or argument, which at any rate he has never previously raised and has therefore waived. See, e.g.,
Marshall, 75 F.3d at 1426. Any objection on this basis is overruled.
Petitioner broadly suggests that pro se status has bearing on the validity of his ineffectiveassistance claims. (See, e.g., Doc. 42 at 8, 12). The Court has previously denied Petitioner’s motion
to appoint counsel in this action (see Doc. 25 at 2), and the record continues to show that Petitioner

4

Whether or not this belief itself was the result of counsel’s ineffective assistance is not appropriately before the
Court since any claim to this effect has not yet been exhausted. (See Doc. 25).
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has thoroughly and intelligibly presented his claims. Accordingly, the Court sees no reason to
revisit Petitioner’s request for counsel, and to the extent Petitioner intends to state an objection on
this basis, that objection is overruled.
Having conducted a de novo review of the filings and the PFRD in light of Petitioner’s
objections, the Court adopts the Magistrate Judge’s proposed findings and recommendations
regarding Petitioner’s ineffective-assistance claims and overrules his corresponding objections.
C. Double Jeopardy
The Magistrate Judge recommended dismissal of Petitioner’s double-description doublejeopardy claim concerning his aggravated burglary and criminal sexual penetration (“CSP”)
charges. (See Doc. 34 at 19-22). Petitioner’s sole particularized objection to this dismissal is that
the Magistrate Judge improperly distinguished his case from another decision cited in his statecourt habeas filings. (See Doc. 42 at 13) (citing, e.g., State v. Armendariz, 148 P3d 798 (N.M. Ct.
App. 2006)).5 After reviewing de novo the parties’ filings and the proposed findings and
recommendations as to this claim, the Court concludes that the Magistrate Judge properly
distinguished Armendariz from Petitioner’s claim. Petitioner’s objection is overruled.
Turning next to Petitioner’s unit-of-prosecution double-jeopardy challenges, the Court
observes that Petitioner at times appears to challenge the weighting of certain Herron factors when
applied to his conviction under Count 2 versus his convictions under the remaining CSP counts.
(See, e.g., Doc. 42 at 14-16); see also Herron v. State, 805 P.2d 624, 628 (N.M. 1991) (outlining
six factors considered collectively “[i]n determining whether an act [of CSP] is distinct”). In the
end, however, Petitioner appears to acknowledge that Count 2 concerned conduct that does not

5

The Magistrate Judge reasoned in part that Armendariz was distinguishable because it concerned aggravated
burglary and CSP charges involving the same use of force, whereas Petitioner’s convictions arose under separate
sections of the same statutes and concerned separate instances of conduct done while armed with a deadly weapon.
(See Doc. 34 at 20-21).
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overlap with the acts underlying his other CSP convictions. (See, e.g., Doc. 42 at 16) (conceding
that “Count 2 is one act of CSP”); (see also id. at 14) (“Petitioner can and should’ve been
reasonably found guilty of 2 counts of CSP.”); (id. at 15) (allowing that “the Herron factors clearly
dictate only 2 separate offenses of CSP”). Considering this acknowledgement and the Magistrate
Judge’s proposed findings and recommendations, the Court adopts the conclusion that Count 2
addresses a penetration that is distinct from those penetrations addressed in the remaining CSP
counts, meaning that Count 2 is a unit of prosecution that is distinct from any other CSP charges.
(See Doc. 34 at 24-25). To the extent that Petitioner’s objections may be construed to argue
otherwise, those objections are overruled.
Petitioner objects to the proposed factual finding that the state court “reasonably could have
found that . . . a repositioning [of the victim] occurred” between the events underlying the second
and third charges of CSP (Counts 3 and 4, respectively) “[b]ecause [Petitioner] likely could not
have accomplished both penetrations without repositioning either himself or [the victim].” (See
Doc. 34 at 26). In support of this objection, Petitioner engages in a belabored explanation as to
how he could have theoretically engaged in both underlying acts without repositioning the victim.
(See Doc. 42 at 17-18). Petitioner’s objection misunderstands the Court’s obligation under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) to defer to state court’s determinations.
Where, as here, a state habeas court rejects a habeas claim on the merits without explanation,6 the
operative questions are “what arguments or theories supported or . . . could have supported the
state court's decision” and “whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”

6

Petitioner raises no objection to the Magistrate Judge’s conclusion that the state court resolved his unit-ofprosecution double-jeopardy habeas claims on the merits, notwithstanding its failure to explain its reasoning. (See
Doc. 34 at 22-23). The Court agrees with, and hereby adopts, the Magistrate Judge’s conclusion on this issue.
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Harrington v. Richter, 562 U.S. 86, 102 (2011) (emphasis added). In other words, “[t]he question
[under AEDPA] is whether there is any reasonable argument that” the state court’s determination
was proper. See id. at 105 (emphasis added); see also id. at 109 (requiring denial of habeas claim
“if there was a reasonable justification for the state court's decision”). The New Mexico Supreme
Court has held that “repositioning of the victim between penetrations tends to show separate [CSP]
offenses” under the second7 Herron factor. See Herron, 805 P.2d at 628. And while Petitioner may
have a plausible alternative theory as to how events may have played out, the factual record8 and
the deference owed to the state-court decision under AEDPA support a finding that a repositioning
of the victim did in fact occur. (See Doc. 34 at 25). The Court therefore overrules Petitioner’s
objection to this proposed finding.
Petitioner next objects to the proposed conclusion that his penetration of the victim with
different parts of his body (digital penetration and cunnilingus) weighs in favor of finding separate
punishable acts under Counts 3 and 4. (See Doc. 34 at 25-26) (citing Lucero v. Kerby, 133 F.3d
1299, 1322 (10th Cir. 1998)). In support, Petitioner argues that the fourth Herron factor only
supports a finding of separate offenses when the CSP charges concern “serial penetrations of
different orifices, as opposed to repeated penetrations of the same orifices.” (Doc. 42 at 15)
(quoting Herron, 805 P.2d at 628) (emphasis in objections). But the fact that this issue does not
directly map onto the fourth Herron factor does not mean it is irrelevant since, as Herron itself
notes, the factors only serve to “assist in guiding” resolution of the ultimate question of whether

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The PFRD mistakenly states that such repositioning implicates the third Herron factor, concerning the presence or
absence of intervening events, rather than the second Herron factor, concerning the location of the victim. (See Doc.
34 at 26). Regardless, the nature and number of Herron factors weighing in favor of a finding of distinct
penetrations is unaffected.
8
The Magistrate Judge correctly described the relevant facts as follows: “[T]he first penetration occurred when
[Petitioner] “got on top” of [the victim] and held down her chest with his arm while inserting a finger into her
vagina, while the second penetration involved [Petitioner] inserting his tongue into her vagina.” (Doc. 34 at 26)
(citing Ex. BB att. A, at 3).
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“each act of penetration is in some sense distinct from the others.” See Herron, 805 P.2d at 62829. While serial penetrations of the same orifice with different parts of an offender’s body will not
per se result in separate punishable acts as a matter of law, see id. at 627-28, New Mexico courts
have nonetheless recognized that serial penetrations with different body parts—or even the same
body part—may sometimes contribute to a finding of distinct offenses when other Herron factors
also support such a finding. See State v. Weiss, No. 32,611, 2014 WL 1999033, at *2 (N.M. Ct.
App. Mar. 24, 2014) (unpublished) (citing N.M.S.A. § 30-9-11(A)) (rejecting double jeopardy
challenge to CSP convictions where defendant first engaged in sexual intercourse, then
repositioned victim and performed oral sex on her against her will); see also State v. Whitt, No.
34,293, 2016 WL 7326146, at *3 (N.M. Ct. App. Nov. 29, 2016) (unpublished) (ruling that two
acts of intercourse, separated by minimal repositioning and brief acts of anal intercourse and
fellatio, constituted separate CSP offenses); cf. Lucero, 133 F.3d at 1321-22 (holding that serial
penetrations of victim’s vagina with finger and penis, separated by victim’s movement, amounted
to distinct penetrations).
In this case, Petitioner serially penetrated the victim with different parts of his body, and
the state court could have reasonably concluded from the available record that Petitioner
repositioned the victim between each penetration as discussed above. Courts interpreting New
Mexico law have found separate punishable CSP offenses under similar circumstances, see, e.g.,
Lucero, 133 F.3d at 1322; Weiss, 2014 WL 1999033, at *2, and the application of AEDPA
deference to this case only reinforces the conclusion that the same outcome is required here.
Because the factual record was sufficient to support the state court’s rejection of Petitioner’s
double jeopardy claim as to Counts 3 and 4, his objection is overruled.

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Similarly, the Magistrate Judge properly recommended the dismissal of Petitioner’s
double-jeopardy challenge as to his CSP convictions in Counts 4 and 5, respectively concerning
acts of cunnilingus and sexual intercourse. (See Doc. 34 at 26-27). As with the preceding objection,
there is no merit to Petitioner’s assertion that his serial penetration of the victim’s vagina with
separate body parts cannot contribute to a finding of distinct offenses. See, e.g., Lucero, 133 F.3d
at 1322; Weiss, 2014 WL 1999033, at *2. Further, although Petitioner appears to deny that a
repositioning of some sort occurred between the lingual and penile penetrations addressed in these
convictions (see Doc. 42 at 17-18), the Court agrees with the Magistrate Judge’s determination
that the state court could have reasonably concluded otherwise. See Harrington, 562 U.S. at 102,
105. The Court also agrees with and adopts the Magistrate Judge’s proposed finding that
Petitioner’s intervening statement to the victim that she was “gonna like the next part” (Ex. BB
att. A, at 3) (emphasis added) evidenced Petitioner’s understanding that the two penetrations were
distinct, meaning that the fifth Herron factor supports a finding of separate punishable conduct.
See Herron, 805 P.2d at 628 (looking to “defendant's intent as evidenced by his conduct and
utterances”). Petitioner’s objection to the Magistrate Judge’s findings and recommendations as to
this double jeopardy claim is overruled.
Finally, Petitioner objects to the Magistrate Judge’s rejection of his double-jeopardy attack
on his convictions for CSP in Count 5 and criminal sexual contact of a minor (“CSCM”) in Count
6. (See Doc. 42 at 18). In support, Petitioner simply states “that the CSCM occurred during the
commission of a single act of CSP (penile) and therefor[e] must be subsumed,” as the “contact
occurred at the exact same time as penetration.” (See id.). Although Petitioner cites the Herron
factors in support of this argument, the Magistrate Judge correctly explained that Petitioner’s
challenge is properly framed as a double-description challenge because it concerns violations of

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multiple statutes, meaning that the Herron factors for resolving unit-of-prosecution doublejeopardy claims are not applicable. (See Doc. 34 at 27); see also, e.g., Armendariz, 148 P.3d at 801
(distinguishing different types of double-jeopardy claims). Under double-description cases, “the
key inquiry is whether the same force was used to commit both crimes.” See Armendariz, 148 P.3d
at 801. Because Count 5 was premised on Petitioner’s penile penetration of the victim, whereas
Count 6 was premised on his contact with her breast, the two convictions do not concern the same
conduct and are not unitary regardless of the timing of each offense. See, e.g., id. (finding
“sufficient indicia of distinctness when the conviction is supported by at least two distinct acts or
forces, one which completes the first crime and another which is used in conjunction with the
subsequent crime”). Petitioner’s objection is overruled.
Having conducted a de novo review of the filings and the PFRD in light of Petitioner’s
objections, the Court adopts the Magistrate Judge’s proposed findings and recommendations
regarding Petitioner’s double-jeopardy claims and overrules his corresponding objections.
III.

CONCLUSION

IT IS, THEREFORE, ORDERED that:
1)

the Magistrate Judge’s PFRD (Doc. 34) is ADOPTED; and

2)

Petitioner Gene Gilbert Ellis, III’s petition for a writ of habeas corpus under 28

U.S.C. § 2254 (Doc. 1) is DENIED, and this matter is DISMISSED WITH PREJUDICE

_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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