Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cain v. Frawner

United States District Court, D. New Mexico

March 8, 2017

PAUL CAIN, Petitioner,
v.
JAMES FRAWNER et al., Respondents.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Paul Cain's pro se Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 by a Person in State Custody (Doc. 1) (“Petition”), filed August 26, 2015, and Respondents' Answer (Doc. 10), filed December 7, 2015. On October 1, 2015, United States District Judge William Johnson referred this case to the undersigned to conduct hearings as warranted, and to perform any legal analysis required to recommend an ultimate disposition of the case. (Doc. 6.) For the reasons set forth below, the Court RECOMMENDS that the Petition be DISMISSED WITHOUT PREJUDICE, unless Mr. Cain notifies the Court within seventeen (17) days of entry of this Proposed Findings and Recommended Disposition that he intends to amend or resubmit his Petition to present only the claims that he has exhausted.

         I. Background

         Mr. Cain is an inmate at the Otero County Prison Facility in Chaparral, New Mexico, serving an in-custody parole term following an out-of-custody parole violation pursuant to a Judgment and Sentence Commitment to Penitentiary in New Mexico v. Cain, Cause No. D-1215-CR-200700496, in the Twelfth Judicial District Court for the State of New Mexico. (Doc. 1; Doc. 10-1 at 1-5, 36-37.) On April 29, 2008, a jury found Mr. Cain guilty of one count of third-degree criminal sexual penetration in violation of Section 30-09-11(E) of the New Mexico Statutes Annotated. (Id. at 1.) The state district court found Mr. Cain to be a habitual offender based on one prior felony conviction from the State of Delaware for the crimes of manslaughter and possession of a deadly weapon during the commission of a felony, (id. at 6-7), and sentenced him to a four-year term of imprisonment[1] and an indeterminate term of supervised parole of between five and twenty years pursuant to Section 31-21-10.1(A) of the New Mexico Statutes Annotated. (Id. at 2-4.) The court also ordered Mr. Cain to register as a sex offender upon his release from custody in accordance with the New Mexico Sex Offender Registration and Notification Act, N.M. Stat. Ann. §§ 29-11A-1 et seq. (Id. at 4, 20-22.)

         On June 25, 2008, Mr. Cain's trial counsel filed a Notice of Appeal of the state district court's judgment and sentence. (Id. at 28.) However, the state district court administratively closed the matter on October 19, 2010, because trial counsel failed to file a docketing statement. (Id. at 31). Shortly thereafter, on November 28, 2010, Mr. Cain was released to community parole. (Id. at 33). In August 2012, after Mr. Cain failed to comply with his sex offender registration obligations, the New Mexico Corrections Department arrested him and the State of New Mexico Adult Parole Board revoked his community parole. (Id. at 36-48). While serving his in-custody parole, on May 23, 2013, Mr. Cain filed a petition for habeas corpus in state district court, claiming that his sentence was illegal and his trial counsel was ineffective. (Id. at 10-23.) More specifically, Mr. Cain claimed that: (1) the enhancement of his sentence pursuant to New Mexico's Criminal Habitual Offender Act was unconstitutional; (2) mandatory, indeterminate parole under Section 31-21-10.1(A) of New Mexico Statutes Annotated “violates all kinds of laws and guarantees, ” including the Fifth Amendment's due process clause; (3) the trial court's written judgment and sentence in Cause No. D-1215-CR-200700496 conflicted with its oral pronouncement of sentence, which should have been given precedence; (4) the presentence investigation process violated his privilege against self-incrimination by forcing him to truthfully disclose previous felony convictions under penalty of perjury; and, (5) his counsel provided him with ineffective assistance by failing to file a docketing statement on direct appeal. (Id.)

         Following the state district court's summary dismissal of his habeas petition on July 3, 2013, Mr. Cain timely petitioned the New Mexico Supreme Court for a writ of certiorari. Upon the prosecution's concession that trial counsel had been ineffective in failing to file a docketing statement on direct appeal, the New Mexico Supreme Court reinstated Mr. Cain's right to appeal and remanded the matter to the state district court for appointment of appellate counsel to file a docketing statement in the New Mexico Court of Appeals. (Doc. 10-2 at 52, 72.) In his subsequent direct appeal, Mr. Cain made the following arguments: (1) the trial court improperly enhanced Mr. Cain's sentence as a habitual offender based on a Delaware conviction for offenses Mr. Cain committed as a juvenile, but for which he was tried as an adult; (2) the trial court's written judgment and sentence erroneously reflected a sentence different from the sentence the trial judge imposed orally; (3) the evidence at trial was insufficient to support the jury's verdict that Mr. Cain was guilty of third-degree criminal sexual penetration; and, (4) trial counsel was ineffective in his failure to (a) perfect a direct appeal, (b) object to improper trial testimony that Mr. Cain alleged was elicited from a law enforcement witness, but which appellate counsel was unable to discern from the trial transcript, and (c) call two witnesses who Mr. Cain claimed would have demonstrated “the credibility of his case and the weakness of the State's.” (Id. at 84- 87.) Unconvinced by any of the issues Mr. Cain raised, the New Mexico Court of Appeals affirmed his conviction in a Memorandum Opinion filed May 14, 2014, and the New Mexico Supreme Court denied certiorari on June 17, 2014. (Doc. 10-3 at 29-58.)

         Thereafter, on August 26, 2015, Mr. Cain filed his federal habeas petition, raising the following issues: (1) the trial court's enhancement of his sentence pursuant to New Mexico's Criminal Habitual Offender Act was unconstitutional; (2) the trial court's imposition of a term of mandatory, indeterminate parole of from five to twenty years was unconstitutional; (3) the trial court's oral pronouncement of Mr. Cain's sentence should have controlled over its written judgment and sentence; (4) the presentence investigation process violated his Fifth Amendment privilege against self-incrimination by forcing him to disclose previous felony convictions under penalty of perjury; and, (5) trial counsel was ineffective in his failure to (a) challenge the sufficiency of the evidence against Mr. Cain pretrial, (b) call witnesses in Mr. Cain's defense, (c) “contest any of the state's evidence, ” (d) object to off-the-record bench conferences and questions, (e) object to improper trial testimony that Mr. Cain alleged was elicited from a law enforcement witness, but which appellate counsel was unable to discern from the trial transcript, and (f) perfect Mr. Cain's direct appeal. (Doc. 1 at 6-8; Doc. 1-1 at 1-9.) Respondent contends that Petitioner failed to exhaust his available state-court remedies as to some of these claims. (Doc. 10 at 4-5.)

         II. ANALYSIS

         A. Exhaustion of State Court Remedies

         A federal district court may not consider the merits of a habeas petition brought pursuant to 28 U.S.C. § 2254 unless the Petitioner “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust state court remedies, a petitioner must “properly present[]” the issue “to the highest state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). In other words, “[t]o exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process, ' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). The petitioner bears the burden of showing that he exhausted all of his claims before the highest state court. See McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009).

         A petition that contains only unexhausted claims can either be dismissed to allow the petitioner to return to state court to exhaust his claims, or denied on the merits notwithstanding the petitioner's failure to exhaust his state court remedies. Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509, 510 (1982); 28 U.S.C. § 2254(b)(2)). If a petition is a “mixed petition, ” in that it contains both exhausted and unexhausted claims, the petitioner may either return to state court to exhaust his unexhausted claims, or amend and resubmit his petition to submit only the exhausted claims in federal court. Moore, 288 F.3d at 1233 (citing Rose, 455 U.S. at 510). Federal “district courts may not adjudicate mixed petitions.” Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009) (quoting Rhines v. Weber, 544 U.S. 269, 273 (2005)).

         B. Petitioner's Claims

         The Court construes Petitioner's claims as follows:[2]

         1. Claim One: ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.