Foster v. Smith et al
Filing
17
REPORT AND RECOMMENDATIONS by Magistrate Judge Karen B. Molzen that Petitioner's § 2254 Petition be denied and dismissed with prejudice. The Court further recommends that a certificate of appealability be likewise denied. Objections to R&R due by 7/3/2019. 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).) (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SCOTT ALLEN FOSTER,
Petitioner,
v.
CIV 18-0429 JB/KBM
RAYMOND SMITH, Warden and
HECTOR BALDERAS, Attorney General
for the State of New Mexico,
Respondents.
PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1) and the
Supplement (Doc. 6) and Supplemental Amendment (Doc. 7), filed by Scott Allen Foster
(“Petitioner”) on May 7, 2018, June 4, 2018 and August 13, 2018, and fully briefed on
January 18, 2019 (Doc. 15). The Honorable James O. Browning referred this case to
me to conduct hearings, if warranted, including evidentiary hearings, and to perform any
legal analysis required to recommend to the Court an ultimate disposition of the case.
Doc. 4. Having reviewed the submissions of the parties and the relevant law, the Court
recommends that the Petition be denied on its current record. 1
1
The Court need not hold an evidentiary hearing, as Petitioner has not made any showing that
his claims rely on “a new rule of constitutional law, made retroactive . . . by the Supreme Court[,]”
“a factual predicate that could not have been previously discovered through the exercise of due
diligence[,]” or that “ the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have found
the applicant guilty[,]” as required by 28 U.S.C. § 2254(e)(2).
I.
Background Facts and Procedural Posture
Petitioner is in state custody pursuant to the Amended Judgment, Sentence, and
Order Determining Habitual Offender Status, which was filed October 27, 2014, in the
Ninth Judicial District Court, Curry County, New Mexico. See Doc. 14, Ex. B. Following
a one-day trial on June 20, 2014, a jury found Petitioner guilty of first-degree trafficking
in controlled substances (Count 1) and second-degree conspiracy to commit trafficking
in controlled substances (Count 2). Id. at 1. These counts arose during an undercover
narcotics investigation conducted by Phil Caroland, a Curry County Sheriff’s Deputy at
the time, which targeted the sale of crack cocaine in Clovis, New Mexico. Doc. 14-4, Ex.
BB, at 196. During the investigation, a confidential informant, Michael Robinson, and an
undercover police officer, Kandi Garcia, conducted approximately 75 controlled buys of
illegal drugs. See id. at 196-97. One such buy took place on November 16, 2012, when
Robinson and Officer Garcia entered a house located at 1113 W. 10th Street, where
Petitioner was present, to purchase cocaine. Id. at 203, 215. During the transaction,
Officer Garcia was equipped with a video recording device; however, the recording
suffered from poor sound quality and the conversations, largely, could not be
understood. Id. at 204, 217, 218. Upon emerging from the home at 1113 W. 10th Street,
Officer Garcia and Robinson returned to the police station, where they produced a
substance which was ultimately determined to be 8/10 of a gram of crack cocaine. Id. at
179-82, 204-05.
Deputy Caroland was married to Monica Caroland, a lawyer who worked in the
law office of Petitioner’s trial attorney, Randall Harris, at the time of the November 16,
2012 controlled buy. See Doc. 1-1 at 28. Mrs. Caroland left Mr. Harris’s firm in
2
December 2012, however, well before Mr. Harris entered his appearance for Petitioner
in April 2013. See id. at 27-28, 82; Doc. 14-6 at 108. Deputy Caroland testified that he
did not have access to any information concerning the investigation or prosecution of
Petitioner by virtue of his wife’s employment at the Harris Law Firm. Doc. 1-1 at 29.
Although Deputy Caroland was sworn in by the Curry County Sheriff as a certified police
officer, he later learned that a clerical error resulted in his commission card not being
properly filed. Id. at 29-30.
Petitioner appealed his drug trafficking convictions. Doc. 14-1, Ex. C & Ex. D. On
September 16, 2015, the New Mexico Court of Appeals proposed summary affirmance
as to the four issues he raised but proposed reversal of his conspiracy conviction,
asking sua sponte (1) whether convictions for drug trafficking and conspiracy to commit
drug trafficking, which arise from a single transaction, violate double jeopardy; and (2)
whether Petitioner had been illegally sentenced. Doc. 14-1, Ex. F. Ultimately, after
considering memoranda of the parties, the Court of Appeals affirmed the trial court in an
April 18, 2016 Memorandum Opinion. Doc. 14-1, Ex. K. On June 10, 2016, the New
Mexico Supreme Court denied a petition for certiorari. Doc. 14-1, Ex. O.
Mr. Harris died on March 2, 2015. Doc. 14-6, Ex. DD. Thereafter, on August 10,
2015, Petitioner’s new attorney filed a state petition for writ of habeas corpus, alleging
that Mr. Harris’s representation was constitutionally defective because he: (1) was
impaired by a drug and alcohol habit throughout the course of the representation;
(2) failed to disclose the “irreconcilable conflict” created by his employment of Monica
Caroland; (3) failed to show that Deputy Caroland and Officer Garcia lacked the proper
appointment as commissioned law enforcement officers; (4) failed to move for
3
disclosure of Officer Garcia’s supplemental report; and (5) failed to take certain actions
with respect to the confidential informant, Michael Robinson. Doc. 14-2, Ex. Q. The
state district court denied the petition. Doc. 14-6, Ex. DD.
Petitioner sought a writ of certiorari from the New Mexico Supreme Court on the
following issues: (1) whether trial counsel Mr. Harris was ineffective due to an
impairment; (2) whether Mr. Harris was operating under an irreconcilable conflict; and
(3) whether Deputy Caroland was acting without lawful authority. See Doc. 14-6, Ex.
HH. The New Mexico Supreme Court denied the petition for writ of certiorari by Order,
without discussion, on February 15, 2018. Doc. 14-6, Ex. II. Because the Supreme
Court’s Order did not include any discussion or rationale, the Court is left to consider,
for purposes of its § 2254 analysis, the rationale supplied by the state trial court. 2 See
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Petitioner filed his federal habeas petition on May 7, 2018. Doc. 1. Parroting
many of the factual and legal assertions offered by counsel in his state habeas petition
and on direct appeal, Petitioner enumerates the following grounds for relief:
(1) “Defense counsel Randall Harris [sic] impairment when representing Petitioner”;
(2) “Convicted Felon Michael Robison [sic]”; (3) “Randall Harris’s undisclosed
irreconcilable conflict”; (4) “Lack of proper appointments of Phil Caroland and Kandi
Garcia as commissioned law enforcement officers”; (5) “Double Jeopardy”; and
2
In Wilson, the United States Supreme Court clarified that when a state supreme court decision
“does not come accompanied with . . . reasons,” the federal court must “‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant rationale”
and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138
S. Ct. 1188, 1192 (2018).
4
(6) “Illegal Enhancement.” 3 Additionally, Petitioner alleges the grounds of “Undercover
Sting Operation” and “Additional acts showing innefective [sic] assistance of counsel” in
his Petition (Doc. 1 at 14), but the Court finds that these grounds are better addressed
in conjunction with his other ineffective assistance of counsel claims, rather than as
distinct grounds.
Petitioner filed his Petition after April 24, 1996; thus, it is subject to the terms of
the Antiterrorism and Effective Death Penalty Act (“the AEDPA”). For purposes of the “in
custody” requirement of 28 U.S.C § 2254, Respondents concede that Petitioner was in
custody at the filing of the Petition and the Answer. Doc. 14 at 5.
II.
Legal Standard
Federal courts have statutory authority under Section 2254, as amended by
AEDPA, to issue habeas corpus relief for persons in state custody. See Harrington v.
Richter, 562 U.S. 86, 97-98 (2011). AEDPA “circumscribes our review of federal habeas
claims that were adjudicated on the merits in state-court proceedings,” subject to only
two exceptions. Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012).
A federal court may grant relief from a state court decision only where a
petitioner demonstrates that the trial court’s resolution of his claims was “‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States’ or ‘was based on an unreasonable
3
Petitioner’s first four grounds were asserted in the original Petition he filed May 7, 2018. See
Doc. 1 at 5, 7, 8, 10, 14. Then, on August 13, 2018, he filed his “Supplemental Amendment” in
which he moved to “amend” the issues of “Double Jeopardy” and “Illegal Enhancement.” Doc. 7
at 1. For continuity sake, the Court refers to these two additional issues as grounds five and six.
Respondents concede that Petitioner exhausted available state-court remedies as to these
grounds by seeking discretionary review of the court of appeals’ April 18, 2016, Memorandum
Opinion. Doc. 14 at 5 (citing Doc. 14-1, Ex. K and Doc. 14-1, Ex. L at 1, 8-10).
5
determination of the facts in light of the evidence presented in the State court
proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)). In analyzing the state court’s
decision, this Court may only review the record that was before the state court and all
factual findings are presumed correct unless rebutted by “clear and convincing
evidence.” Id. (quoting 28 U.S.C. § 2254(e)).
Under Section 2254(d)(1), the threshold question asks whether the applicant is
seeking to invoke a rule of law that was clearly established by the Supreme Court at the
time the conviction became final. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir.
2011) (citation omitted); see also Williams v. Taylor, 529 U.S. 362, 390 (2000). If the law
was clearly established, then the court determines whether the state court decision was
“contrary to or involved an unreasonable application of that clearly established law.”
Byrd, 645 F.3d at 1165 (quoting Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th Cir.
2004) (internal quotations omitted)).
First, a state-court decision is “contrary to” clearly established law “if the state
court applies a rule different from the governing law set forth” by the Supreme Court or
“if it decides a case differently than [the Supreme Court has] done on a set of materially
indistinguishable facts.” Hooks, 689 F.3d at 1163 (quoting Bell v. Cone, 535 U.S. 685,
694 (2002)). The state court is not required to cite to, or even be aware of, Supreme
Court decisions, “so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Second, “[a] state-court decision is an ‘unreasonable application’ of clearly
established federal law when the state court ‘identifies the correct governing legal
principle from th[e Supreme] Court’s decisions but unreasonably applies that principle to
6
the facts of petitioner’s case.’” Hooks, 689 F.3d at 1163 (quoting Wiggins v. Smith, 539
U.S. 510, 520 (2003)). AEDPA precludes issuance of a writ simply because the federal
court concludes in its independent judgment that the state court applied the federal law
erroneously or incorrectly. Byrd, 645 F.3d at 1166. Instead, the application must also be
“objectively unreasonable.” Id. As long as “fairminded jurists could disagree” as to the
correctness of the state court’s decision, Yarborough v. Alvarado, 541 U.S. 652, 664
(2004), this “‘highly deferential standard for evaluating state-court rulings[ ]’ . . .
demands that state-court decisions be given the benefit of the doubt.” Hooks, 689 F.3d
at 1163 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
Even if a federal habeas court finds that the state court decision was contrary to
or an unreasonable application of clearly established federal law, habeas relief may not
issue unless the violation is of a sort that warrants such relief. See e.g., Williams, 529
U.S. at 375 (“It is, of course, well settled that the fact that constitutional error occurred in
the proceedings that led to a state-court conviction may not alone be sufficient reason
for concluding that a prisoner is entitled to the remedy of habeas.”); Wilson v. Sirmons,
536 F.3d 1064, 1073 (10th Cir. 2008) (“If we find that the state court erred, we still must
determine whether the error is a structural defect ‘in the constitution of the trial
mechanism, which def[ies] analysis by “harmless-error” standards.’”) (quoting Arizona v.
Fulminante, 499 U.S. 279, 309 (1991)), rehearing en banc granted on separate issue,
549 F.3d 1267 (10th Cir. 2008).
Finally, because Petitioner is proceeding pro se, the Court construes his
pleadings liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). The Court will not, however, “take on the responsibility of serving as
7
the litigant’s attorney in constructing arguments and searching the record.” Id.
III.
Motion for Appointment of Counsel
Along with his original Petition, Petitioner filed a Motion for Appointment of
Counsel. Doc. 3. On January 29, 2019, this Court denied that motion, noting that it is
generally unnecessary to appoint counsel before a case has reached the stage of the
proceedings where an evidentiary hearing may be required. Doc. 16. Accordingly, the
Court characterized Petitioner’s request for appointment of counsel as premature,
denying it without prejudice. Id.
The Court has now had the opportunity to consider the merits of the Petition as
well as Respondents’ Answer. Because it determines herein that the Petition is without
merit and that no evidentiary hearing is required, it likewise finds that it is unnecessary
to revisit its previous decision to deny the appointment of counsel in this case.
IV.
Discussion
A. Exhaustion and Procedural Default
The petitioner in a habeas action brought pursuant to 28 U.S.C. § 2254 must
establish that he has properly exhausted available state-court remedies by raising his
federal claim or claims in the state’s highest court, either by direct review or in postconviction proceedings. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th. Cir.
1994). Respondents concede that Petitioner’s claims have been properly exhausted in
the state courts and are ripe for review, save one claim. See Doc. 14 at 4-5.
Respondents maintain that Petitioner’s second ground for relief regarding Michael
Robinson has not been properly exhausted. Id. at 4.
8
Petitioner clearly raised issues as to Robinson in his state habeas petition. 4
Indeed, many of the assertions in his federal habeas petition are identical to those made
in his state habeas petition. See, e.g., Doc. 1 at 28-29. Yet, Petitioner failed to assert
any claims related to Robinson in his petition seeking a writ of certiorari from the New
Mexico Supreme Court. See Doc. 14-6 at HH. Because he did not give the State’s
highest court the opportunity to review his claims related to Robinson, they have not
been properly exhausted.
Respondents describe these claims as “technically exhausted” but “procedurally
defaulted.” Doc. 14 at 4, 8. They suggest that “[i]t is unlikely that [Petitioner] would be
able to return to state court to present these claims, thus making a second appearance
before the New Mexico Supreme Court nearly impossible.” Id. at 9. More specifically,
Respondents note that New Mexico Rule 5-802(I) NMRA enumerates only limited
circumstances in which a petitioner may file a second or successive petition. Id. (citing
NMRA 5-802(I)). State-court remedies are technically exhausted when they are no
longer available, regardless of the reason for their unavailability. Woodford v. Ngo, 548
U.S. 81, 92-93 (2006). However, “exhaustion in this sense does not automatically entitle
the habeas petitioner to litigate his or her claims in federal court.” Id. at 93. Instead, if
Petitioner procedurally defaulted those claims, he generally is barred from asserting
them in a federal habeas proceeding. Id. at 92-93.
4
By way of example, Petitioner argued in his state habeas petition that Mr. Harris was ineffective
because he failed to file a pretrial motion for production of a supplemental report by Officer Garcia
in order to impeach the testimony of Robinson, failed to make discovery requests or file motions
to suppress related to Robinson, filed only a conclusory motion to strike Robinson’s testimony,
failed to file a motion to produce the criminal history of Robinson, failed to file a motion in limine
requiring a voir dire examination before Robinson could testify, and failed to file a motion to
suppress regarding Robinson’s admitted drug use. Doc. 14-2, Ex. Q, at 13-14, 16.
9
Accordingly, ground two of the Petition should not be considered by this Court
unless Petitioner can demonstrate cause and prejudice for failing to comply with the
State’s procedural rules or a fundamental miscarriage of justice, see Smallwood v.
Gibson, 191 F.3d 1257,1268 (10th Cir. 1999), or if the court determines that the claims
can be easily resolved on the merits, see 28 U.S.C. § 2254(b)(2); Romero v. Furlong,
215 F.3d 1107, 1111 (10th Cir. 2000). To show “cause” for failing to comply with a
state’s procedural rules, a petitioner must show that “some objective factor external to
the defense impeded his compliance with New Mexico’s procedural rules.” Watson v.
New Mexico, 45 F.3d 385, 388 (10th Cir. 1995) (citations and quotation marks omitted).
Petitioner has made no such allegation or showing here. To demonstrate a
“fundamental miscarriage of justice,” a petitioner must make a “colorable showing of
factual innocence.” Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997) (citation
omitted). A claim of factual innocence requires a petitioner to “support his allegations of
constitutional error with new reliable evidence – whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not
presented at trial.” Frost v. Pryor, 749 F.3d 1212, 1232 (10th Cir. 2014) (citation and
quotation omitted). This evidence must be so convincing that, had it been introduced at
trial, no reasonable juror would find the petitioner guilty. Id. Petitioner has submitted no
new evidence to make a showing of factual innocence. As such, his procedurallydefaulted claims may not proceed under the “fundamental miscarriage of justice” test.
Moreover, his second ground for relief cannot be easily disposed of on the merits.
Therefore, the Court concludes that Petitioner’s failure to seek certiorari review of his
claim(s) related to the use of Michael Robinson as a confidential informant and as a
10
witness at trial is not excused. These claims are procedurally defaulted and should not
be considered by this Court.
B. Ineffective Assistance of Counsel Grounds
To establish ineffective assistance of counsel, a litigant must satisfy a two-part
test. First, he must show that counsel’s performance was deficient because it fell below
an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 68788 (1984). Second, he must show that counsel’s deficient performance prejudiced him.
Id. at 687. To demonstrate that counsel was ineffective, the litigant must satisfy both
prongs outlined in Strickland. See id. The Court may address each of these
components in any order and need not address both if the litigant makes an insufficient
showing on one. United States v. Dowell, 388 F. App’x. 781, 783 (10th Cir. 2010) (citing
Strickland, 466 U.S. at 697).
In demonstrating that counsel’s performance was deficient under the first prong
of the Strickland test, “judicial scrutiny of counsel’s performance must be highly
deferential” and the “court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689. The reasonableness of counsel’s performance must be evaluated considering all
the circumstances. Id. at 688. In addition, to establish prejudice under the second prong
of the Strickland test, a petitioner must show “that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
“Surmounting Strickland’s high bar is never easy.” Harrington v. Richter, 562 U.S.
86, 88 (2011) (citation omitted). When a Strickland challenge is coupled with
the “highly deferential” standards of § 2254, the litigant’s burden of proving
11
unreasonableness becomes even more difficult. Id. The question becomes not whether
counsel’s actions were reasonable, but “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. at 105.
A number of Petitioner’s grounds for relief fall under the umbrella of ineffective
assistance of counsel. In the most clearly stated grounds, Petitioner argues that Mr.
Harris rendered constitutionally defective representation by (1) providing legal
representation while impaired by a drug and alcohol habit; (2) failing to disclose an
“irreconcilable conflict” resulting from his employment of Monica Caroland; and
(3) failing to discover “that neither Deputy Caroland nor Officer Garcia were
commissioned law enforcement officers . . . .” Doc. 1 at 5, 8, 10; Doc. 1-1 at 13-15.
Additionally, Petitioner argues that there were “[a]dditional acts” showing Mr. Harris’s
ineffectiveness, including facts associated with the “Undercover Sting Operation.”
Doc. 1 at 14; Doc. 1-1 at 11. For example, he maintains that Mr. Harris failed to obtain a
supplemental police report prepared by Officer Garcia, failed to make adequate
discovery requests, failed to file motions to suppress despite compelling grounds, filed
ineffective motions to strike the testimony of Officer Garcia and Robinson, and failed to
conduct a proper investigation. Doc. 1-1 at 11, 16. But these issues involve Mr. Harris’s
decisions related to trial tactics for which he is afforded wide latitude and over which
Petitioner must overcome a presumption of sound trial strategy. See Strickland, 466
U.S. at 689. Petitioner has done nothing to overcome this presumption. Any claim
related to the purported “[a]dditional acts showing ineffective assistance of counsel” or
the ”Undercover Sting Operation” should be denied.
12
As for the three more developed ineffective-assistance claims, the Court will
analyze each in turn.
i. Randall Harris’s alleged impairment
Notably, Petitioner’s criminal jury trial took place in the Ninth Judicial District
Court, the same court to which this Court must turn for evaluation of the State’s
rationale for denial of habeas relief. See supra Part I. On collateral review, the state trial
court considered and rejected Petitioner’s claim that a drug and alcohol impairment by
Mr. Harris rendered his representation of Petitioner ineffective. Doc. 14-6, Ex. DD. The
trial court noted that when the question of Mr. Harris’s possible impairment arose during
jury selection, it “directly addressed Mr. Harris about the issue and found that [he] was
not impaired.” See Doc. 14-6, Ex. DD, at 4. The court explained that it had been “in
close proximity to Mr. Harris and made an informed ruling on the issue of Mr. Harris’s
impairment.” Id. According to the court, neither its personal observations nor the trial
record supports the conclusion that Mr. Harris was impaired during his representation of
Petitioner at trial. Id. at 5.
At the December 28, 2017 hearing on Petitioner’s state habeas petition, Mr.
Harris’s former administrative assistant, Debbie Phillips, who worked closely and
consistently with Mr. Harris before and during Petitioner’s trial, swore that Mr. Harris
was not impaired by drugs and/or alcohol at the time of jury selection or on the day of
trial. Id. at 4. Having heard Ms. Phillips’ testimony to this effect and noting that Mr.
Harris is now deceased and no longer Ms. Phillip’s employer, the court expressly found
Ms. Phillips to be a credible witness. Id. Additionally, the trial court noted that Petitioner
himself testified at the December 28, 2017 hearing that he was “not concerned” about
13
any impairment by Mr. Harris, even though he reported smelling alcohol on Mr. Harris at
one point during trial. Id. Significantly, Petitioner did not raise the issue of any
impairment by Mr. Harris at the time of trial. Id.
Ultimately, the trial court applied the Strickland test and concluded that Petitioner
failed to show that Mr. Harris’s representation was not that of a “reasonable, competent
attorney” or that “but for counsel’s ‘error,’ there was a reasonable probability that the
result of the conviction proceedings would have been different.” Id. at 5. As noted by
Respondents, the trial court was in an ideal situation to personally observe and evaluate
any possible impairment by Mr. Harris and its effect on his representation of Petitioner.
See Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (noting that the presiding judge on
post-conviction review was “ideally situated” to assess the petitioner’s statements at
sentencing because she was also the sentencing judge).
Petitioner has failed to satisfy his § 2254(d) burden, as he cannot demonstrate
that the trial court determined the facts concerning Mr. Harris’s purported impairment in
an unreasonable manner or that its decision under Strickland was contrary to or
involved an unreasonable application of clearly established federal law. Having
reviewed the record as a whole, including the trial transcript, the Court is satisfied that
there is at least a reasonable argument that counsel satisfied Strickland’s deferential
standard. As to ground one, the Court recommends denial of the Petition.
ii. Randall Harris alleged “irreconcilable conflict”
In addition to his purported impairment, Petitioner also suggests that an
“irreconcilable conflict” of interest, of which he was unaware at the time of trial, rendered
Mr. Harris’s representation ineffective. Doc. 1 at 8; Doc. 1-1, at 4. To establish
14
ineffective assistance of counsel, a petitioner must demonstrate that his attorney’s
performance was adversely affected by an “actual conflict of interest,” as opposed to the
“possibility of conflict.” See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
In an attempt to show an actual conflict of interest, Petitioner relies heavily upon
the rationale of Judge Armijo of this District in United States v. Green, 09cr0311
MCA/WPL (D.N.M. Feb. 14, 2012). There, Mr. Harris also represented the defendant in
a criminal prosecution. See Green, 09cr0311 MCA/WPL, Doc. 229 at 2. And as is the
case here, Phil Caroland led the investigation that resulted in charges against the
defendant. 5 Id. at 1-2. Immediately before trial in Green, the federal prosecutor informed
the Court that Phil Caroland, a key witness for the Government, was married to an
associate working in Mr. Harris’s small law office. Id. at 2. Mr. Harris assured the Court,
however, that he had established a firewall within his office so that Mrs. Caroland would
have no involvement or access to information regarding the defendant’s case. Id.
Sixteen weeks after the defendant was convicted in Green, a subsequent
attorney filed a motion for new trial on her behalf, grounded in part on the theory that
Mr. Harris had represented her under a conflict of interest and that her attempt to waive
that conflict was invalid. Id. at 4. Defendant submitted sworn affidavits calling into
question whether Mr. Harris had actually created the firewall he discussed with the court
and whether any such firewall could in fact be established in light of the organizational
layout of his law office. Id. at 11. The defendant there maintained that Mr. Harris made
affirmative and misleading representations concerning the extent and effectiveness of a
5
In contrast to this case, in Green, Phil Caroland himself acted in an undercover capacity, entering
the defendant’s medical office while wearing a concealed recording device and seeking a
prescription for methadone. See Green, 09cr0311 MCA/WPL, Doc. 229, at 2.
15
firewall. Id. at 12. According to the Court, this new evidence was material to the
defendant’s Sixth Amendment right to conflict-free counsel. Id. The Court determined,
unequivocally, that “Mr. Harris was indeed conflicted,” noting that under the New Mexico
Rules of Professional Conduct, Mrs. Caroland could not have represented the
defendant and that, as an associate of Mr. Harris, her conflict was imputed to Mr. Harris.
Id. at 13-14. The Court acknowledged that the defendant could have nevertheless
knowingly waived the conflict but reasoned that the evidence presented suggested that
“Mr. Harris may have misrepresented the actions he took to ensure a firewall around
Mrs. Caroland.” Id. at 16. According to the Court, the evidence suggested that either no
firewall was actually contemplated by Mr. Harris or, alternatively, that the firewall put
into place was effectively a sham. Id. The Court provided the following admonishment to
Mr. Harris:
Trust is at the very core of an attorney-client relationship. It is of
concern to this Court that Mr. Harris may have represented [the]
[d]efendant under a conflict of interest, where a conflict was not
validly waived, and under circumstances whereby [the d]efendant,
the Court, and possibly the Government may have been misinformed
as to the nature and extent undertaken by him to protect her
interests.
Id. at 19.
Here, Petitioner submits that the “identical facts existed when the Harris Law
Firm represented” him. Doc. 14-2, Ex. Q, at 6; see also Doc. 14-6, Ex. HH, at 5. But as
concerning as Mr. Harris’s actions or inactions were in Green, the Court is simply not
confronted with the same concerns here. As the state habeas court found, even though
Mrs. Caroland was working at Mr. Harris’s firm at the time Petitioner was investigated,
including at the time of the November 16, 2012 controlled buy, she was no longer
16
working at the firm by the time of Petitioner’s criminal prosecution. Indeed, the affidavit
submitted by Mrs. Caroland states that she did not work with Mr. Harris’s law firm in
2013, having left in December 2012. Doc. 1-1 at 82. Significantly, Petitioner was not
indicted until March 2013, nor arrested until August 2013. See Doc. 14-6 at 104, 110.
And Mr. Harris’s entry of appearance on Petitioner’s behalf came four months after Mrs.
Caroland left his law office, in April 2013. See id. at 108. These facts are easily
distinguishable from those in Green.
The state habeas court reached the same conclusion, determining that the
conflict which burdened Mr. Harris’s representation of the defendant in Green did not
similarly burden his representation of Petitioner in this case. Doc. 14-6 at 45. In fact, it
found that no conflict existed at all. Id. Critically, Petitioner has not shown that the state
habeas court’s decision regarding Mr. Harris’s purported conflict of interest constitutes
an objectively unreasonable application of clearly established federal law. Instead, the
Court finds the state habeas court’s determination to be perfectly reasonable. The Court
recommends that the Petition be denied as to ground three.
iii.
Deputy Caroland and Officer Garcia’s Commissions as Law
Enforcement Agents
In ground four, Petitioner challenges the “lack of a proper appointment of Phil
Caroland and Kandi Garcia as commissioned law enforcement officers.” Doc. 1 at 10.
Petitioner maintains that if Mr. Harris had conducted a basic investigation of Deputy
Caroland and Officer Garcia’s commissions, he would have been able to prevent them
from testifying at trial and would have nullified the Grand Jury Indictment. Doc. 1-1 at
14-15. Petitioner reasons that the lack of commissions rendered Officer Caroland
without the authority to arrest or charge him. Id. at 9. Respondents insist that, even
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apart from the issue of the validity of the officers’ commissions, this claim must fail
because Petitioner cannot demonstrate that he was prejudiced by any issue with these
officers’ commissions. Doc. 14 at 15. This Court agrees.
The state habeas court recounted testimony from William Elliott, Private
Investigator, provided at the December 28, 2017 hearing. Doc. 14-6 at 46. According to
the court, Mr. Elliott showed that Deputy Caroland’s commission card had not been
properly filed, and neither Deputy Caroland nor the State contested this showing. Id.
Deputy Caroland provided testimony that he believed his commission card had been
properly filed but subsequently learned that there had been a clerical error that affected
its filing. Id. at 47. The state habeas court found that while a clerical error had caused
“an issue” with the filing of Deputy Caroland’s commission card, it was due to no fault of
Deputy Caroland, and he was not aware of the error at the time of Petitioner’s case. Id.
Having found that Deputy Caroland was at all relevant times a certified law enforcement
officer, the state habeas court determined that Petitioner failed to demonstrate any
prejudice. Id. As to Officer Garcia, the state habeas court noted that Petitioner had
presented no evidence of her commission status, nor any evidence of any prejudice
from a defective commission. Id. Thus, no facts supported Petitioner’s claims in this
regard. Id.
The Court cannot say that the state habeas court made unreasonable
determinations of fact as to the officers’ certifications or commissions in light of the
evidence presented. Nor has Petitioner shown that the state habeas court’s decision as
to the officers’ commissions constitutes an objectively unreasonable application of
clearly established federal law. Despite the issue with the filing of Deputy Caroland’s
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commission card, the evidence suggests that Deputy Caroland was a certified law
enforcement officer at the time of the subject investigation and at the time of Petitioner’s
arrest and prosecution. Under these circumstances, Mr. Harris’s failure to pursue any
challenge to the commissions of Deputy Caroland and Officer Garcia was not
constitutionally defective, and the Petition should be denied on this ground.
C. Claims in Petitioner’s Supplemental Amendment
In his Supplemental Amendment, Petitioner seeks to add the issues of “Double
Jeopardy” and “Illegal Enhancement” to the grounds for relief asserted in his Petition.
Doc. 7. Petitioner offers no factual assertions in support of these grounds in his
Supplemental Amendment; however, the issues were previously addressed by New
Mexico Court of Appeals on direct appeal. Indeed, the Court of Appeals initially
proposed reversing Petitioner’s convictions on these grounds. Doc. 14-1, Ex. F, at 5.
i.
Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a
second prosecution for the same offense after acquittal; (2) a second prosecution for
the same offense after conviction; and (3) multiple punishments for the same offense.
See United States v. Dixon, 509 U.S. 688, 695-96 (1993). Here, the Court surmises that
Petitioner asserts double jeopardy on the basis that he received multiple punishments
for the same offense. The determination of whether Petitioner’s “punishments are
multiple in violation of the Double Jeopardy Clause is essentially one of legislative
intent.” Dennis v. Poppel, 222 F.3d 1245, 1251 (10th Cir. 2000). Critically, federal courts
must “defer to a state court’s interpretation of state law in determining whether an
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incident constitutes one or more than one offense for double jeopardy purposes.”
Thomas v. Kerby, 44 F.3d 884, 887 (10th Cir. 1995) (citations omitted).
Swafford v. State, 810 P.2d 1223 (N.M. 1991) provides the framework under
New Mexico law for analyzing claims of double jeopardy for convictions under multiple
statutes. The Swafford test inquires:
whether the conduct underlying the offenses is unitary, i.e., whether
the same conduct violates both statutes. If the conduct is non-unitary,
then multiple punishments would not violate the Double Jeopardy
Clause. If the conduct is unitary, the court must then proceed to the
second prong of the test, which asks whether the legislature intended
multiple punishment for unitary conduct.
Lucero v. Kerby, 133 F.3d 1299, 1316 (10th Cir. 1998) (quoting Swafford, 810 P.2d at
1234) (internal citations and quotations omitted) (emphasis added). The New Mexico
Supreme Court explained in Swafford that conduct is non-unitary if the “events are
sufficiently separated by either time or space” or if “the quality and nature of the acts or
. . . the objects and results involved” are distinguishable. Swafford, 810 P.2d at 1233-34.
Federal courts have recognized that “conspiracy to commit a crime is not the
same offense as the substantive crime for double jeopardy purposes, because the
agreement to do the act is distinct from the [completed] act itself.” United States v.
Fornia-Castillo, 408 F.3d 52, 69 (1st Cir. 2005) (internal quotation marks and citations
omitted). Further, “[u]nder New Mexico law, courts have upheld separate convictions for
conspiracy to commit trafficking and the act of trafficking when the evidence showed
more than just the exchange of drugs for money.” State v. Silvas, 343 P.3d 616, 622
(N.M. 2015). Nevertheless, here, the Court of Appeals expressed initial concerns that
Petitioner’s conviction for trafficking and conspiracy to commit trafficking for a single
sale of drugs may be a violation of double jeopardy protections, citing Silvas. See
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Doc. 14-1, Ex. F, at 5. In Silvas, the New Mexico Supreme Court held that double
jeopardy precluded the defendant’s convictions for trafficking and conspiracy where
both offenses were premised on a singular sale of drugs to another woman. Silvas, 343
P.2d at 621.
Here, though, after considering the arguments of the parties through briefing, the
Court of Appeals was able to discern two separate factual bases for Petitioner’s drug
trafficking and conspiracy convictions. Distinguishing the facts in Petitioner’s case from
those in Silvas, the court explained:
[I]t appears that the State’s theory was that [Petitioner] conspired with
Sharon Kirven and Bobby Molett to retrieve the drugs from the bedroom,
and [Petitioner] sold the drugs to Robinson. Therefore, the State asserts
that the conspiracy agreement was among [Petitioner], Kirven, and Molett,
which was separate and apart from the drug sale to Robinson. The record
reflects that there was evidence presented that it was Kirven’s house; Molett
retrieved the drugs from the bedroom after [Petitioner] gave him permission
to do so; and [Petitioner] sold the drugs to Robinson.
Doc. 14-1, Ex. I, at 10-11. Thus, in the view of the Court of Appeals, Petitioner’s assent
to and direction of Kirven and Molett in the sale of drugs justified the conspiracy conviction
while his involvement in the actual exchange of drugs for money with Robinson supported
his trafficking conviction. See Doc. 14-1, Ex. I, at 9-11; Doc. 14-1, Ex. K, at 3-4. Having
determined that Petitioner’s conduct was non-unitary, it was unnecessary for the court to
determine whether the legislature intended multiple punishments. See Swafford, 810 P.2d
1234.
The Court is satisfied that the state court’s application of federal law on the issue
of double jeopardy was a reasonable one. Although the offenses of drug trafficking and
conspiracy to commit drug trafficking may not have been substantially separated in time
or space, the quality and nature of the acts supporting these convictions was
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distinguishable. See Lucero, 133 F.3d at 1320-22 (concluding that although there was
no significant separation of conduct by time or place, the acts related to the offenses
were of a different quality or nature and were therefore non-unitary). Once again, it was
the actual exchange of drugs for money with Robinson that constituted drug trafficking.
And it was the assent to and direction of his co-conspirators that constituted conspiracy
to commit drug trafficking, regardless of whether the drug transaction was completed.
As such, the Court cannot conclude that the decision of the New Mexico Court of
Appeals to deny Petitioner’s double jeopardy claim was contrary to, or involved an
unreasonable application of, clearly established federal law. Nor was it based on any
unreasonable determination of the facts in light of the evidence presented. The Court
recommends that the Petition be denied on the double jeopardy issue.
ii.
Illegal Sentencing Enhancement
In the sixth and final ground, Petitioner asserts that he was subject to an “Illegal
[Sentencing] Enhancement.” Doc. 7. Prior to his drug trafficking conviction in the
underlying case, Petitioner was twice convicted of drug trafficking. Doc. 14-1, Ex. I, at
11. One of those prior trafficking convictions was used to enhance his trafficking offense
in this case from a second-degree felony to a first-degree felony. Id. at 12. The second
trafficking conviction, along with a conviction for criminal solicitation, was used to
enhance Petitioner’s sentence under the habitual offender statute. Id. On direct appeal,
Petitioner asserted that his sentence was illegal because the State failed, with respect
to his criminal solicitation conviction, to prove the requisite conviction-crime sequence.
Id. at 12. Specifically, he submitted that the State failed to establish that he committed
criminal solicitation after his conviction for possession with intent to distribute. Id.
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Presumably, Petitioner intends to advance the same illegal-sentencing-enhancement
argument here. See Doc. 7.
In addressing his sentencing argument on direct appeal, the Court of Appeals
quoted the New Mexico Supreme Court in State v. Linam, 600 P.2d 253 (N.M. 1979):
[I]t is inherent in the habitual criminal act that, after punishment is imposed
for the commission of a crime, the increased penalty is held In terrorem
over the criminal for the purpose of effecting his reformation and
preventing further and subsequent offenses by him. Thus the use of the
words “upon conviction of such second felony” or “third felony” as used in
the statute must be held to mean felonies committed subsequent to the
dates of the convictions relied on to effect an increase of the penalty.
Otherwise the reform object of the legislation to provide a deterrent from
future crimes would not be realized.
Doc. 14-1, Ex. I, at 13 (quoting Linam, 600 P.2d at 255). In Linam, the New Mexico
Supreme Court found “no direct proof that each of the offenses was committed
subsequent to the date of the next preceding conviction relied on [to] effect an increase
of the penalty in each instance.” Id. at 256. Consequently, the court held that there was
insufficient evidence to support the decision that the convictions and commissions of
crimes followed the requisite conviction-crime sequence. Id.
Although the State was unable to provide evidence of the date on which
Petitioner’s criminal solicitation offense occurred, Doc. 14-1, Ex. I, at 13-14, it explained
that Petitioner’s sentencing argument “depend[ed] on the possible, but unlikely, premise
that [Petitioner] was convicted in late 2010 of a crime that happened at least six years
before the date of conviction.” Id. at 14. Persuaded by the unlikeliness of this premise,
the Court of Appeals affirmed the district court’s sentencing enhancement. In so doing,
it relied upon State v. Graham, 81 P.3d 556 (N.M. Ct. App. 2003), reversed on other
grounds by 109 P.3d 285, in which the defendant raised for the first time on appeal the
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sequencing of his convictions under the habitual offender act. The Graham court
determined that the defendant’s argument, without an adequate record, was insufficient
to justify remand. Id. at 558. Following that rationale in this case, the Court of Appeals
proposed to affirm Petitioner’s convictions but invited the filing of a petition for habeas
corpus pursuant to New Mexico Rule 5-802.
Petitioner followed through with the invited state habeas filing, on May 7, 2018,
when he raised the issue of a purportedly illegal sentence in his Supplemental
Amendment. Unfortunately for Petitioner, though, he provided no argument or basis on
which the Court could find in his favor on this issue.
Notably, federal courts “afford wide discretion to the state trial court’s sentencing
decision, and challenges to that decision are not generally constitutionally cognizable,
unless it is shown the sentence imposed is outside the statutory limits or unauthorized
by law.” Dennis, 222 F.3d at 1258. Petitioner has failed to make such a showing. Nor
has he demonstrated, as he must, that the state court’s affirmance of his sentence
constitutes an unreasonable application of federal law or was based on an
unreasonable determination of facts in light of the evidence. Pursuant to 28 U.S.C.
§ 2254(e)(1), determinations of factual issues made by a state court are presumed
correct, and it is a petitioner’s burden to “rebut[] the presumption of correctness by clear
and convincing evidence.” Here, Petitioner has done nothing to overcome the
presumption in favor of the state court’s determination. The Court recommends denying
his Petition on this final ground.
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V.
Recommendations
For the reasons set forth herein, the Court recommends that Petitioner’s § 2254
Petition be denied and dismissed with prejudice. The Court further recommends that a
certificate of appealability be likewise denied.
______________________________________
UNITED STATES MAGISTRATE JUDGE
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.
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