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Cain v. Frawner

United States District Court, D. New Mexico

March 30, 2017

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

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE WILLIAM P. JOHNSON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Petitioner Paul Cain's 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. On March 8, 2017, United States Magistrate Judge Kirtan Khalsa entered Proposed Findings and a Recommended Disposition (Doc. 14) (“PFRD”), in which she recommended that the Court dismiss the Petition without prejudice, unless Petitioner promptly notifies the Court that he intends to amend and resubmit his Petition, withdrawing his unexhausted claims and presenting only the exhausted claims. Petitioner filed a pleading entitled “Plaintiff's Opposition to Magistrate Judge's Proposed Findings and Recommended Disposition” (Doc. 16) (“Objections”) on March 20, 2017, in which he timely objected to the Magistrate Judge's PFRD. Having considered the Magistrate Judge's PFRD, Petitioner's Objections, the record, and the applicable law, the Court finds that the Objections are not well taken and should be overruled, and that the PFRD should be adopted.

         I. Factual Background and Procedural History

         Based on its de novo review of the record, the Court concurs with the Magistrate Judge's description of the factual background and procedural history of this case, (see Doc. 14 at 1-4), and will not repeat all of its particulars here, but rather will simply highlight points salient to Petitioner's Objections. Petitioner is a prisoner 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 the state district court's judgment and sentence in New Mexico v. Cain, No. D-1215-CR-200700496. (Doc. 1; Doc. 10-1 at 1-5, 36-37, 48.) On April 29, 2008, a jury found Petitioner guilty of one count of third-degree criminal sexual penetration. (Doc. 10-1 at 1.) The state district court sentenced Petitioner to four years' imprisonment-three years' imprisonment plus a one-year enhancement upon finding that Petitioner was a habitual offender-and an indeterminate term of supervised parole of between five and twenty years. (Id. at 1-4, 6-7.) The court also required Petitioner to register as a sex offender upon his release from custody. (Id. at 2-3, 20-22.)

         On November 29, 2010, Petitioner was released to community parole. (Id. at 33-35.) In August 2012, however, after Petitioner failed to comply with his sex offender registration obligations, his community parole was revoked. (Id. at 36-48.) While serving his in-custody parole, on May 23, 2013, Petitioner filed a petition for habeas corpus in state district court, claiming that: (1) the enhancement of his sentence pursuant to New Mexico's Criminal Habitual Offender Act was unconstitutional; (2) mandatory, indeterminate parole under N.M. Stat. Ann. § 31-21-10.1(A) violates the Fifth Amendment and other “laws and guarantees”; (3) the state district court's written judgment and sentence conflicted with its oral pronouncement of sentence, which should have controlled; (4) the presentence investigation process violated his privilege against self-incrimination; and, (5) his counsel provided him with ineffective assistance by failing to file a docketing statement on direct appeal. (Id. at 49-62.)

         The state district court summarily dismissed Petitioner's state habeas petition on July 3, 2013, and on July 11, 2013, Petitioner timely petitioned the New Mexico Supreme Court for a writ of certiorari. (Doc. 10-1 at 87-90; Doc. 10-2 at 1-6.) In its response to the petition, the prosecution conceded that Petitioner's trial counsel had been ineffective in failing to file a docketing statement, and the New Mexico Supreme Court therefore reinstated Petitioner's right to appeal. (Doc. 10-2 at 52, 70-72.) In his subsequent direct appeal by and through appointed counsel, Petitioner made the following arguments: (1) the trial court improperly found Petitioner to be a habitual offender based on a Delaware conviction for offenses Petitioner committed as a juvenile, but for which he was tried as an adult; (2) the trial court's written judgment and sentence erroneously imposed a sentence different from the sentence the trial judge orally pronounced; (3) the evidence at trial was insufficient to support the jury's verdict that Petitioner 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 Petitioner 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 whose testimony would have been favorable to Petitioner and unfavorable to the prosecution. (Id. at 81-87.) The New Mexico Court of Appeals rejected Petitioner's arguments and 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 29-33, 58.)

         Petitioner filed the Petition presently before the Court on August 26, 2015, making the following claims: (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 Petitioner's sentence should have controlled over its written judgment and sentence; (4) the presentence investigation process violated Petitioner's Fifth Amendment privilege against self-incrimination; and, (5) trial counsel was ineffective in his failure to (a) challenge the sufficiency of the evidence against Petitioner pretrial, (b) call witnesses in Petitioner'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 Petitioner alleges was elicited from a law enforcement witness, but which “cannot be found anywhere in the record, ” and (f) perfect Petitioner's direct appeal. (Doc. 1 at 6-9; Doc. 1-1 at 1-9.) In their December 7, 2015 answer to the Petition, Respondents contend that Petitioner failed to exhaust his available state-court remedies as to some of these claims. (Doc. 10 at 7-10.)

         II. Judge Khalsa's PFRD

         Judge Khalsa's PFRD is premised on the statutory prohibition that a federal district court may not consider the merits of a 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). Judge Khalsa noted that, 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).

         Judge Khalsa liberally construed the claims in the Petition as follows:[1]

         1. Claim One: Illegal Sentence

a. New Mexico's Criminal Habitual Offender Act violates the Eighth and Fourteenth Amendments to the United States Constitution, and the principle of separation of powers;
b. The state district court improperly relied on a prior Delaware conviction to enhance Petitioner's sentence pursuant to New Mexico's Criminal Habitual Offender Act;
c. New Mexico's treatment of parole as mandatory elevates parole to a constitutional right;
d. New Mexico's mandatory, indeterminate parole unconstitutionally enhances third-degree felony sex offenders' sentences by up to twenty additional years;
e. The written judgment and sentence against Petitioner conflicts with the state district court's oral pronouncement of sentence, and the oral pronouncement should control; and,
f. The presentence investigation process violated Petitioner's Fifth Amendment privilege against ...

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