Martinez v. Sims et al
Filing
16
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (PFRD) regarding Petitioner's 1 Petition for 2254 Relief, by Magistrate Judge Gregory J. Fouratt. Objections to the PFRD due by 7/29/2020. 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).) (gbg)
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 1 of 17
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
RAYMOND M. MARTINEZ,
Petitioner,
v.
Civ. No. 18-559 JB/GJF
DWIGHT SIMS, Warden, and
HECTOR H. BALDERAS, Attorney
General for the State of New Mexico
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court1 on Petitioner’s pro se “Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254” (“Petition”) [ECF 1] and Respondents’ Answer [ECF 15]. Having
reviewed the briefing and being fully advised, this Court recommends the Petition be DENIED
for the reasons that follow.
I.
PROCEDURAL HISTORY
A New Mexico jury convicted Petitioner on two counts of first-degree criminal sexual
penetration of a child under thirteen years of age and two counts of misdemeanor enticement of a
child. Ex. A at 1-3 (attach 1, 1-3).2 On appeal, relevant to the instant Petition, Petitioner argued
that the trial court erred in admitting victim C.Q.’s in-court identification of Petitioner because
C.Q. did not directly look at Petitioner but rather pointed in the direction in which the prosecutor
1
U.S. District Judge James Browning referred this case to the undersigned to conduct hearings, if warranted, including
evidentiary hearings, and to perform any legal analysis required to recommend an ultimate disposition of the case.
See ECF 9. This Court has concluded that no evidentiary hearing is required or permitted. See 28 U.S.C. § 2254(e)(2).
The State’s record was filed in four attachments with attachment one including exhibits A-N, attachment two
including exhibits O-V, attachment three including exhibits W-BB, and attachment four including exhibits CC-HH.
As the pages of these attachments are not individually numbered, the Court has included (for ease of reference) two
separate page location numbers in each such citation. For example, “Ex. TT at 2” refers to (unnumbered) page two
of exhibit TT, and the parenthetical “(attach. 4, 80)” clarifies that this reference can be found on the 80th page (as
designated by the ECF page stamp) of the overall attachment.
2
1
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 2 of 17
had stated Petitioner would be sitting. Exs. D at 9-14 (attach 1, 19-24), F at 7-14 (attach 1, 41-48).
The New Mexico Court of Appeals (“NMCA”) affirmed Petitioner’s conviction, reasoning that
’Petitioner’s challenge went to the “credibility and weight of C.Q.’s in-court identification” and
that it was therefore the “jury’s duty as [sic] ‘as fact-finder to resolve any conflict in the testimony
of the witnesses and to determine where the weight and credulity lay.’” Ex. K at 8 (attach 1, 110)
(citation omitted). The New Mexico Supreme Court (“NMSC”) denied Petitioner’s writ of
certiorari. Exs. L (attach 1, 112-126) (writ of certiorari), M (attach 1, 127) (order denying
certiorari).
On August 23, 2011, Petitioner filed a 230-page pro se writ of habeas corpus in state court.
Ex. O (attach 2, 1-291). By order of the state trial court, Ex. P (attach 2, 292), Petitioner through
counsel filed a condensed amended petition. Ex. Q (attach 2, 293-311). Petitioner argued that
trial counsel was ineffective for (1) “[f]ailing to have an expert testify about the credibility of eye
witnesses when the State’s entire case was based upon such identification,” and (2) “[f]ailing to
object to the tainted in-court identification of [Petitioner]; or to the trial court curing the question
of tainted testimony by impeachment.” Ex. Q at 2-3 (attach 2, 294-95). After full briefing, see
Ex. R (attach 2, 312-316) (response), and an evidentiary hearing, see Ex. S (attach 2, 317), the trial
court denied the petition. The trial court reasoned that trial counsel was not ineffective because
she “was aware of the [Petitioner’s issue with the in-court identification] and raised an appropriate
motion in limine to address it,” and once that motion was denied, “exercised before the jury
[P]etitioner’s right of confrontation by cross examining the child about the circumstances in which
[the] child was in the courtroom prior to trial with the prosecuting attorney.”3 Ex. T (attach 2, 318319). Moreover, the court found that trial counsel, who had “represented over 2,000 clients in
3
Petitioner was represented at trial by Sydney West, Esq.
2
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 3 of 17
felony matters prior to [the] trial,” did not violate Strickland v. Washington, 466 U.S. 668 (1984),
when she consulted with but ultimately decided not to call an expert witness to testify during trial.
Id. In a one-page order, the NMSC denied the petition on September 21, 2017. See Ex. V (attach
2, 330).
On November 17, 2017, Petitioner filed another pro se habeas petition. Petitioner again
argued that trial counsel was constitutionally deficient for failing to (1) “timely file a pre-trial
motion in limine” to prevent C.Q.’s in-court identification, (2) “object to suppress an alleged
statement that was in-voluntarily [sic] [made by Petitioner] [and] admitted into evidence at the
states [sic] request,” (3) “properly investigate the basis for probable cause to arrest,” (4) “retain a
medical forensic DNA expert,” (5) “object to the court’s refusal to grant the jurors 4 [sic] notes
requesting more information needed to review and decide and make a proper decision before
deliberating,” and (6) “object requesting removal and or mistrial for cause of bias juror.” Ex. W
at 8-10 (attach 3, 8-10). On January 11, 2018, the state district court summarily dismissed this
petition as a second or successive petition under Rule 5-802 NMRA. Ex. Y at 1 (attach 3, 21).
The district court reasoned that, inter alia, save for ground six, Petitioner could have raised the
alleged issues in previous proceedings, and that he nonetheless had failed to establish either prong
of Strickland. Ex. Y at 1-3 (attach 3, 21-23). The Petitioner again sought relief with the NMSC
and the NMSC again denied certiorari. See Exs. Z (attach 3, 25-43) (writ), AA (attach 3, 44) (order
denying writ).
On June 15, 2018, Petitioner then sought review in this Court by filing the instant Petition.
II.
FACTUAL BACKGROUND
Pursuant to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Court
presumes the factual findings of the NMCA are correct. See 28 U.S.C. § 2254(e)(1); Schriro v.
3
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 4 of 17
Landrigan, 550 U.S. 465, 473–74 (2007). The NMCA summarized the facts as follows:
At trial, the victims testified to a nearly identical scenario that, when combined with
Detective Wiggins’ testimony, provided sufficient evidence to convict Defendant
as the man who was responsible for sexually assaulting the victims. The boys
testified as follows. C.Q. and V.P. were eight and seven years old, respectively, at
the time of the assault. It was summertime and they were hunting for grasshoppers
while walking along an arroyo close to a home on Agua Fria where V.P. was living.
The boys saw a man they did not know standing outside of a residence. The man
asked the boys if they would like to have some Kool-Aid, to which they responded
in the affirmative. The boys stayed outside and played with a cat while the man
brought them Kool-Aid.
The man said he was rebuilding his bathroom and asked the boys to come look at
it. C.Q. went into the house first; V.P. remained outside and continued playing with
the cat. C.Q. testified that the man took him to the bathroom, closed the door,
showed him some tile, and took off C.Q.’s pants and underwear. C.Q. stated that
the man put his mouth on C.Q.’s “privates” and performed oral sex on him. The
man stopped and told C.Q. not to tel1 anyone and that he would give C.Q. fireworks
if he kept their secret. C.Q. left the house and went to look for V.P., who he did not
see until V.P. later left the bathroom.
V.P. similarly testified that the man also asked him to go into the house, took him
into the bathroom, closed the door, and told V.P. to pull down his pants. The man
put his mouth on V.P.’s “privates,” and V.P. testified that it felt like the man was
biting him. When it was over, V.P. pulled up his pants, ran out of the door, found
C.Q., and went back to the house where V.P. was living.
Later that day, V.P. went to a scheduled doctor’s appointment for a check up [sic]
and, while his mother was undressing him, he told her about the sexual assault.
V.P.’s mother contacted C.Q.’s aunt and guardian and told her to speak with C.Q.
about what had happened. The SANE nurse’s testimony reflected that V.P. and
C.Q. relayed the same stories to her during their separate examinations: they
encountered a stranger at the arroyo who sexually assaulted them in a bathroom.
Detective Wiggins, the supervising detective in the case, testified that the boys
described the man who assaulted them as dark-skinned with a pock-marked face;
crooked, bad teeth; and black, greasy hair. The boys showed police officers the
home near the arroyo where they said the assault occurred.
Later, detectives returned to that house and found four men sitting at a table outside
drinking beer. Defendant was among the men sitting at the table. Detective
Wiggins testified that Defendant appeared to be somewhat intoxicated and that he
was asking a lot of questions, talking closely with the detective, and demanding to
know what the officers were investigating. During the exchange, Defendant stated
that he had been at the residence all day, and that Defendant had made contact with
two little boys at the residence that day. Defendant claimed that he, not the boys,
4
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 5 of 17
had been sexually assaulted. Defendant explained to Detective Wiggins that the
boys had asked him for water, that he had agreed, that he brought them inside, and
that, when they were in the bathroom, the boys attempted to grab his penis.
Detective Wiggins testified that, given the information he had received from the
other investigators, the boys’ statements, and their descriptions of the assailant, the
detective thought he had probable cause to believe that Defendant was the man who
assaulted the boys and placed him under arrest. Detective Wiggins also testified
that he saw that there was some kind of tile work being done in the kitchen area.
Ex. K at 3-6 (attach 1, 105-08).
III.
CLAIMS PRESENTED
Petitioner advances eight separate theories as to why his trial counsel was ineffective.
Petitioner alleges counsel failed to:
(1) “retain an eyewitness expert.” Pet. 4;
(2) object to C.Q.’s in-court identification. Id.;
(3) “timely file a pre-trial motion in limine” to prevent C.Q.’s in-court
identification. Id. at 5;
(4) object to “suppress an alleged statement that was in-voluntarily [sic] admitted
into evidence at the states [sic] request.” Id.;
(5) “properly investigate the basis for probable cause to arrest.” Id.;
(6) retain a forensic DNA expert. Id.;
(7) object to the trial court’s “refusal to grant the jurors’ 4 notes requesting more
information needed to review and decided and make a proper decision.” Id.;
and
(8) “request removal and or mistrial for cause of bias juror.” Id.
Respondents do not dispute that Petitioner has exhausted available state-court remedies as
to all grounds for relief. Answer 4 (citing Exs. O, Q, U, W, X). Moreover, Respondents waive
this requirement for all grounds. See id.4 Therefore, the Court will address all eight grounds on
See also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be
estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”).
4
5
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 6 of 17
the merits.
IV.
APPLICABLE LAW5
The “AEDPA requires that [courts] apply a difficult to meet and highly deferential standard
in federal habeas proceedings under 28 U.S.C. § 2254; it is one that demands that state-court
decisions be given the benefit of the doubt.” Simpson v. Carpenter, 912 F.3d 542 (10th Cir. 2018)
(quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)) (internal quotation marks omitted).
“[T]he standard of review applicable to a particular claim depends upon how that claim was
resolved by state courts.” Cole v. Trammel, 735 F.3d 1194, 1199 (10th Cir. 2013). When a
petitioner includes in his habeas application a “claim that was adjudicated on the merits in state
court proceedings,” a federal court shall not grant relief on that claim unless the state court
decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
Simpson, 912 F.3d at 562 (quoting 28 U.S.C. § 2254(d)(1)-(2)).
To determine “whether a state court’s decision involved an unreasonable application of
federal law or was based on an unreasonable determination of fact,” a federal habeas court must
“train its attention on the particular reasons—both legal and factual—why state courts rejected a
state prisoner’s federal claims and give appropriate deference to that decision.” Wilson v. Sellers,
138 S. Ct. 1188, 1191–92 (2018) (internal quotations and citations omitted).
“This is a
straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its
5
In this section, the Court sets forth the Congressionally-mandated legal standard for federal review of state criminal
convictions, as that standard has been interpreted by the Supreme Court and Tenth Circuit. The Court will include in
its individual analysis of Petitioner’s claims the substantive legal standard that governs each of those claims.
6
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 7 of 17
decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews
the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id.
Review becomes more difficult, however, when a state court fails to accompany its decision with
a reasoned opinion. In such an instance, a federal habeas court “should ‘look through’ the
unexplained decision to the last related state-court decision that does provide a relevant rationale.”
Id.
Once a federal habeas court locates the relevant rationale, it then can determine whether
the decision was contrary to or an unreasonable application of Supreme Court law. A state court
decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts
that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a
result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). This
does not require the state court to cite applicable Supreme Court precedent or even demonstrate an
“awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the statecourt decision contradict them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original).
A state court decision is an “unreasonable application” of Supreme Court law if the
decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.”
Williams, 529 U.S. at 407–08. Courts apply this objective
unreasonableness inquiry “in view of the specificity of the governing rule: The more general the
rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Simpson,
912 F.3d 542 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). If, however, “a legal
rule is specific, the range may be narrow,” thus “[a]pplications of the rule may be plainly correct
or incorrect.” Yarborough, 541 U.S. at 664. It is also important to note that “an unreasonable
7
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 8 of 17
application of federal law is different from an incorrect application of federal law.” Williams, 529
U.S. at 410. “[A] federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly”; instead “that application must also be unreasonable.” Id.
at 411.
V.
ANALYSIS
In analyzing Petitioner’s eight grounds for relief, the Court will first examine Grounds
One and Ground Two together as they both relate to the in-court identification issue. The Court
will end its analysis by addressing Grounds Three through Eight as a single group.
A. Grounds One and Two
Petitioner asserts that trial counsel’s failure to object to C.Q.’s in-court identification
prejudiced his chance for an acquittal. Pet. 4. Petitioner also argues that trial counsel’s failure to
“retain an eyewitness expert” was constitutionally infirm. Id. As explained below, the Court finds
that each prong of Strickland—reasonableness and prejudice—was thoroughly and reasonably
addressed by the state courts.6 The Court therefore recommends that relief be denied as to Grounds
One and Two.
1. Legal Standard
The Sixth Amendment to the United States Constitution guarantees Petitioner the right to
the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). For
federal habeas petitions brought under 28 U.S.C. § 2254(d), Strickland is clearly established
federal law. See Williams v. Taylor, 529 U.S. 362, 390 (2000) (“It is past question that the rule set
6
The state habeas court held an evidentiary hearing on these claims, see Ex. S, and issued a written opinion. See Ex.
T. On direct appeal, the NMCA addressed the in-court identification issue in the sufficiency of evidence context. See
Ex. K.
8
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 9 of 17
forth in Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme
Court of the United States.”). To succeed under Strickland, Petitioner must show both that
“counsel’s representation fell below an objective standard of reasonableness” and “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687-88. Courts “may address the
performance and prejudice components in any order, but need not address both if [the defendant]
fails to make a sufficient showing of one.” Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir.
1998).
To establish the first prong, a petitioner must overcome the presumption that counsel
“rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466
U.S. at 690). This requires Petitioner to establish that the “attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices
or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland,
466 U.S. at 690).
To satisfy the second prong, “[t]he [petitioner] must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In the context of a jury verdict, the prejudice that a habeas
petitioner must establish is that—but for counsel’s unreasonable conduct—there is a reasonable
possibility that the jury would have had reasonable doubt as to the conviction. See Weaver v.
Massachusetts, 137 S. Ct. 1899, 1912 (2017) (observing that “prejudice in the ordinary sense” is
“a reasonable probability that the jury would not have convicted [the defendant]”).
“Establishing that a state court’s application of Strickland was unreasonable under
9
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 10 of 17
§ 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both
highly deferential, . . . and when the two apply in tandem, review is doubly so.” Howell v.
Trammell, 728 F. 3d 1202, 1223 (10th Cir. 2013) (quoting Harrington, 562 U.S. at 105) (internal
citations and quotations omitted). “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under § 2254(d). When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105.
2. Performance of Trial Counsel
In denying Petitioner relief on Grounds One and Two, the state habeas court began and
ended its analysis with reasonableness. In support of its finding that Petitioner had failed to
establish the first prong of Strickland, the state court considered “testimony produced as part of
the proceedings, pleadings, and arguments made by counsel . . . .” Ex. T at 1 (attach 2, 318). This
Court grants deference to the state court’s fact finding—deference that Petitioner cannot
overcome—and concludes that the state court reasonably applied Strickland. Moreover, the
NMCA addressed on direct appeal Petitioner’s challenge to the in-court identification on
sufficiency of evidence grounds. Therefore, and although the NMCA did not apply Strickland on
direct appeal, its reasoning nonetheless demonstrates that Petitioner cannot establish prejudice.
a. Deficient Performance
Relying on Strickland’s teachings, the state habeas court concluded that Petitioner failed
to demonstrate how counsel’s performance fell below an objective standard of reasonableness. Ex.
T at 1-2 (attach 2, 318-19). This Court agrees and gives deference to that conclusion.
To begin, the court first found that “[t]rial counsel was aware of the aforementioned
10
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 11 of 17
identification issue regarding the child victim and raised an appropriate motion in limine to address
it with the trial court.” Id. at 1. The court further found that “trial counsel exercised before the
jury [P]etitioner’s right of confrontation by cross examining the child about the circumstances in
which [the] child was in the courtroom prior to trial with the prosecuting attorney.” Id. at 1-2.
Lastly, the court refused to second-guess trial counsel’s decision not to call an identification expert.
Although trial counsel represented that “she ha[d] consulted with expert witnesses in
identification” but “never [had] called one in an actual trial,” the Court nonetheless deferred to her
judgment because of her prior experience in “felony trials” where she had represented “over 2,000
clients in felony matters prior to trial.” Id. Thus, based on the record before it, the court held that
the “first prong of the Strickland” test was not met. Id. at 2.
The AEDPA requires that a federal habeas court grant deference to a state court’s reasoned
decision unless it was contrary to Supreme Court precedent or it involved an unreasonable
determination based upon the facts presented. Neither occurred here. The state court reasonably
concluded under Strickland’s first prong that trial counsel adequately challenged C.Q.’s in-court
identification through a motion in limine and cross-examination.
And, in light of the evidence
and trial counsel’s experience, the court reasonably found that trial counsel’s decision not to call
an identification expert was constitutionally sufficient. Indeed, nothing in the record nor in
Petitioner’s Petition overcomes the presumption that this decision was reasonable. See Strickland,
466 U.S. at 690 (strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment). Rather, the record
demonstrates a learned trial attorney’s decision to forego controversial and potentially problematic
expert testimony.
Therefore, the state court reasonably applied Strickland, as it is deemed to have done if
11
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 12 of 17
there is “any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105 (emphasis added). For these reasons, the Court recommends that
Grounds One and Two be denied.
b. Prejudice
A court applying Strickland need not address prejudice if a petitioner fails to establish
deficient performance. See Ward, 165 F.3d at 1292-93. Nonetheless, the Court addresses the
NMCA decision merely to illustrate that Petitioner also cannot establish prejudice arising either
from his trial counsel’s failure to object to the in-court identification or her decision to forego
presenting expert testimony on in-court identifications.
On direct appeal, Petitioner argued that “there was insufficient evidence presented that he
was the man responsible for sexual assaulting the victims.” Ex. K at 1-2 (attach 1, 103-04).
Specifically, he challenged the evidence “regarding the victims’ descriptions of the assailant and
the scene of the crime, as well as the victims’ identification of Defendant.” Id at 2. In affirming
Petitioner’s convictions, the Court found that “the victims testified to a nearly identical scenario
that, when combined with Detective Wiggins’ testimony, provided sufficient evidence to convict
Defendant as the man who was responsible for sexually assaulting the victims.” Id at 3-4. When
addressing Petitioner’s argument that he was not the man responsible for the assaults, the court
found that
[e]ven though the boys did not give a perfect description of Defendant or of the
residence where the assault occurred, the officers were able to find the residence
and focus on Defendant. Defendant’s statement to Detective Wiggins placed him
with the boys in the bathroom at the residence. The boys’ general and consistent
descriptions of Defendant and of the residence in conjunction with Defendant’s
statement to Detective Wiggins constitutes sufficient evidence that Defendant was
responsible for the assault.
Id. at 7-8. This reasoning alone demonstrates that Petitioner could not establish that, but for
12
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 13 of 17
counsel’s alleged deficiencies in handling C.Q.’s in-court identification and the failure to introduce
testimony from an expert witness, the result of the proceeding would have been different. Rather,
it shows that two other witnesses offered sufficient testimony to sustain Petitioner’s convictions
irrespective of C.Q.’s identification or potential expert testimony.
Moreover, as the NMCA correctly noted, Petitioner’s challenge to his in-court
identification goes to “the credibility and weight of C.Q.’s in-court identification” and “it is the
jury’s duty as ‘as fact-finder to resolve any conflict in the testimony of the witnesses and to
determine where the weight and credibility lay.’” Id. at 8 (citation omitted). And the state habeas
court found that the “[j]ury was properly instructed in the case.” Ex. T at 2 (attach 2, 318).
Consequently, the Court cannot conclude that, based on the other evidence presented at trial, there
is a reasonable possibility that the jury would have had reasonable doubt as to the conviction
simply because trial counsel failed to introduce an identification expert or further attack
Petitioner’s in-court identification. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1912 (2017)
(concluding that petitioner had not “shown prejudice in the ordinary sense, i.e., a reasonable
probability that the jury would not have convicted him”). For these additional reasons, the Court
recommends that Grounds One and Two be denied.
B. Grounds Three Through Eight
Petitioner argues here that trial counsel was deficient because she failed to (1) “timely file
a pre-trial motion in limine” to prevent C.Q.’s in-court identification, (2) object to “suppress an
alleged statement that was in-voluntarily [sic] admitted into evidence at the states [sic] request,”
(3) “properly investigate the basis for probable cause to arrest.,” (4) retain a forensic DNA expert,
(5) object to the trial court’s “refusal to grant the jurors’ 4 notes requesting more information
needed to review and decided and make a proper decision,” and (6) “request removal and or
13
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 14 of 17
mistrial for cause of bias juror.” Pet. 4-5. These asserted grounds for relief, however, did not
appear in Petitioner’s initial state habeas petition, which dealt only with Grounds One and Two
above. Rather, these asserted grounds appeared for the first time only in the second habeas petition
filed by Petitioner.
The state habeas court summarily dismissed the claims pursuant to NMRA, Rule 5-802(I)7
as a second or successive petition. Ex. Y at 1 (attach 3, 21). In addition, the court noted that
Petitioner failed to attach supporting documentation to the successive petition and thus had “failed
to present a prima facie case that would merit relief.” Id. at 2. Consequently, the court found that
Petitioner had “met neither prong” of Strickland. The Court recommends that relief based on
Grounds Three through Eight be denied for the reasons that follow.
If a “petitioner procedurally default[s] [asserted] claims, the prisoner generally is barred
from asserting those claims in a federal habeas proceeding.” Woodford v. Ngo, 548 U.S. 81, 93
(2006) (citation omitted); see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (federal courts apply “the
doctrine of procedural default, under which a federal court will not review the merits of claims,
including constitutional claims, that a state court declined to hear because the prisoner failed to
abide by a state procedural rule.” (citing Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)
(“The [adequate state ground] doctrine applies to bar federal habeas [relief] when a state court
declined to address a prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement.”))).
To overcome “[t]he doctrine barring procedurally defaulted claims from being heard . . .
[a] prisoner may obtain federal review of a defaulted claim by showing cause for the default and
The state court’s decision refers to Rule 5-802(I) as 5-802(H). The rule was amended, and the letters re-arranged,
but the content of the rule for second and successive petitions remains the same. Compare Rule 5-802(I) NMRA with
Rule 5-802(H) NMRA (2017).
7
14
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 15 of 17
prejudice from a violation of federal law.” Martinez, 566 U.S. at 10 (citing Coleman, 501 U.S. at
750). Similarly, “the cause and prejudice standard will be met in those cases where review of a
state prisoner’s claim is necessary to correct ‘a fundamental miscarriage of justice.’” Coleman,
501 U.S. 748.
New Mexico allows trial law courts to dismiss second and successive habeas petitions in
most instances:
Second and successive petitions. If the petitioner has previously filed a petition
seeking relief under this rule, the court shall have the discretion to:
(1) dismiss any claim not raised in a prior petition unless fundamental error has
occurred, or unless an adequate record to address the claim properly was not
available at the time of the prior petition; and
(2) dismiss any claim raised and rejected in a prior petition unless there has been
an intervening change of law or fact or the ends of justice would otherwise be
served by rehearing the claim.
Rule 5-802(I) NMRA.8 Because the second state habeas court dismissed Petitioner’s 2017
petition in accordance with this rule, Petitioner must establish cause and prejudice for this Court
to review the merits of Grounds Three through Eight. Petitioner establishes neither as to any of
these grounds.
“In order to satisfy the ‘cause’ standard, Petitioner must show that ‘some objective factor
external to the defense’ impeded his compliance with New Mexico’s procedural rules.” Watson
v. State of N.M., 45 F.3d 385, 388 (10th Cir. 1995) (citation omitted). Before the state habeas
court, Petitioner argued that he failed to present these grounds for relief on direct appeal “because
As Respondent correctly notes, a New Mexico habeas court “[i]n exercising its discretion . . . should consider
whether the prior petition was pro se or the petitioner was represented by counsel. Petitioners proceeding pro se will
often not have developed their claims as fully as petitioners represented by counsel.” Id. (Committee Commentary
for 2014 Amendments). In exercising that discretion in this case, the state habeas court found that, with respect to
Petitioner’s first petition (1) “Petitioner was appointed counsel,” (2) “filed an amended petition,” and (3) “was granted
an evidentiary hearing.” Ex. Y at 2 (attach 3, 22). Consequently, the second state habeas court concluded that
dismissal was warranted under the rule This Court agrees.
8
15
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 16 of 17
the trial court did not preserve the issues stated in th[e] petition” and that he failed to present them
in the previous habeas petition “because the prior habeas attorney raised his own issues.” Ex. Y
at 2 (attach 3, 22).
A petitioner can overcome default in limited circumstances by alleging ineffective
assistance of habeas counsel. See Martinez, 566 U.S. at 17 (“Where, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.”). This limited exception is inapplicable here, however, because
New Mexico does not bar ineffective assistance claims on direct appeal. See State v. Bahney,
2012-NMCA-039, ¶ 48, 274 P.3d 134, 149 (“In order to establish a prima facie case of ineffective
assistance of counsel on direct appeal, a defendant must demonstrate that: (1) counsel’s
performance fell below that of a reasonably competent attorney; (2) no plausible, rational strategy
or tactic explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial to the
defense.”). Moreover, as the second state habeas court found, the “issues [had been] raised in
previous proceedings in the courts.” Id.9 The court also noted that Petitioner did not attach any
documents that supported the new claims. Id. at 3. The court concluded that Petitioner had “failed
to present a prima facie case that would merit relief” and that he “met neither prong” of Strickland.
Id. The instant petition is even more deficient as Petitioner has made no showing or allegation that
he has met the cause and prejudice requirement.
Petitioner also cannot demonstrate a fundamental miscarriage of justice because he has not
submitted new evidence of factual innocence. See Foster v. Smith, 429 F. Supp. 3d 940, 962
The court did note that Petitioner’s argument that counsel failed to request the removal of a biased juror had not been
raised previously.
9
16
Case 2:18-cv-00559-JB-GJF Document 16 Filed 07/15/20 Page 17 of 17
(D.N.M. 2019) (“To demonstrate a fundamental miscarriage of justice, a petitioner must make a
colorable showing of factual innocence. 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.” (internal quotations and citations omitted)).
Consequently, Petitioner cannot overcome the procedural default hurdle and, therefore, the
Court recommends Grounds Three through Eight be denied on this basis. See James v. Smith, No.
CIV 17-0360 JCH/KBM, 2018 WL 1033197, at *3 (D.N.M. Feb. 22, 2018) (adopting PFRD
recommendation that petitioner procedurally defaulted when habeas court dismissed petition under
Rule 5-802).
VI.
CONCLUSION
For the reasons detailed above, it is RECOMMENDED that Petitioner’s “Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254” [ECF 1] BE DENIED.
The Court further RECOMMENDS that, pursuant to Rule 11 of the Rules Governing
Section 2254 Proceedings for the United States District Courts, a certificate of appealability be
DENIED.
SO RECOMMENDED.
________________________________________
THE HONORABLE GREGORY J. FOURATT
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)(c). Any request for an extension
must be filed in writing no later than seven days from the date of this filing. 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. 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?