Waters v. Attorney General for the State of New Mexico et al

Filing 18

ORDER ADOPTING 15 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez. Petitioner's request to dismiss his unexhausted claims, Sub-Claim 1(a), Ground 2, and Ground 4 is GRANTED, and Sub-Claim 1(a), Ground 2, and Ground 4 are dismissed without prejudice. Respondent is hereby ordered to file a supplemental answer addressing the merits of Petitioner's exhausted claims by June 28, 2024. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSEPH B. WATERS,
Petitioner,
v.

No. 2:22-cv-926 MV/KRS

FNU STEVENSON Warden, and
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents.

ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition (“PFRD”), filed April 25, 2024. (Doc. 15). The PFRD notified the
parties of their ability to file objections within fourteen (14) days and that failure to do so waived
appellate review. (Id. at 12–13). To date, the parties have not filed any objections and there is
nothing in the record indicating that the proposed findings were not delivered.
The PFRD proposed that the Court find that Petitioner has filed a mixed petition containing
both exhausted and unexhausted claims. (See Doc. 15). Specifically, the Magistrate Judge found
that Petitioner exhausted the following claims: ineffective assistance of counsel based on trial
counsel’s failure to suppress Petitioner’s non-Mirandarized statements to law enforcement, advice
to decline the State’s plea offer, failure to investigate Petitioner’s defenses and witnesses, failure
to call witnesses and rebuttal expert witnesses (sub-claims 1(b) – (f)), and double jeopardy (Ground
3). (Id. at 7–9). The Magistrate Judge found that Petitioner’s remaining claims—Sub-claim 1(a)
that his trial counsel was ineffective for preventing Petitioner from testifying at trial, Ground 2 that
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his first degree kidnapping conviction was illegal, and Ground 4 that the cumulative effect of all
errors including, but not limited to, fundamental errors and harmless errors, warranted relief—
were unexhausted. (Id.)
The PFRD recommended that Petitioner be given thirty (30) days after an order adopting
the PFRD to voluntarily dismiss his unexhausted claims and proceed on his remaining claims. (Id.
at 12). The PFRD further recommended advising Petitioner that if he did not voluntarily dismiss
his unexhausted claims, the Court would dismiss his entire petition without prejudice. (Id.).
On May 9, 2024, the Court received a letter from Petitioner confirming receipt of the
PFRD, and requesting the Court “drop or dismiss [his] unexhausted claims and proceed with the
exhausted claims.” (See Doc. 17 at 1).
IT IS HEREBY ORDERED that:
1.

The PFRD (Doc. 15) is ADOPTED;

2.

Petitioner’s request to dismiss his unexhausted claims, Sub-Claim 1(a), Ground 2,

and Ground 4 is GRANTED, and Sub-Claim 1(a), Ground 2, and Ground 4 are dismissed without
prejudice; and
3.

Respondent is hereby ordered to file a supplemental answer addressing the merits

of Petitioner’s exhausted claims by June 28, 2024.
IT IS SO ORDERED.

________________________________
MARTHA VÁZQUEZ
SENIOR UNITED STATES DISTRICT JUDGE

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