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Mark v. Franco

United States District Court, D. New Mexico

June 26, 2017

JUSTIN JOHN MARK, Petitioner,
v.
GERMAN FRANCO, ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on Petitioner Justin John Mark's Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November 9, 2016. Doc. 12. The Honorable Robert A. Junell, Senior United States District Judge, referred this matter to me for entry of proposing findings and a recommended disposition. Doc. 4.

         Having reviewed the parties' submissions, the record, and the relevant law, I find that Petitioner has filed a mixed petition containing both exhausted and unexhausted claims. In February 2017, Petitioner filed a notice with the Court asking to delete his unexhausted claim. See Docs. 21-22. I recommend construing Petitioner's notice as a motion seeking to dismiss his unexhausted claim and granting this motion so that Petitioner may proceed with his exhausted claims. In addition, because Respondents did not respond to the substance of Petitioner's exhausted claims in their answer, I further recommend directing Respondents to file a supplemental answer and to supplement the state court record. Lastly, I recommend that the Court give Petitioner an opportunity to reply to the supplemental answer.

         I. Background

         On November 9, 2012, a jury convicted Petitioner Justin John Mark of first degree murder, second degree armed robbery, conspiracy to commit armed robbery, and tampering with evidence. Doc. 17-1, Ex. A. Petitioner's convictions arose from a May 29, 2011 incident at the home of Kevin Lossiah that resulted in Mr. Lossiah's death. Petitioner was sentenced to a term of life imprisonment plus three years. Id.

         On January 16, 2013, Petitioner appealed his convictions to the New Mexico Supreme Court.[1] Doc. 17-1, Ex. B. He raised five issues in his direct appeal, arguing that (1) his Sixth Amendment right to confrontation was violated by the introduction of expert testimony from a pathologist who did not perform Mr. Lossiah's autopsy; (2) evidence seized from Petitioner should have been suppressed; (3) there was insufficient evidence to support his convictions; (4) the trial court improperly instructed the jury as to the first degree murder charge; and (5) these errors, taken together, constituted cumulative error. See Doc. 17-1, Ex. E. On April 13, 2015, the New Mexico Supreme Court entered a decision affirming Petitioner's convictions. Doc. 17-2, Ex. H; see also Doc. 17-2, Ex. I (Mandate issued May 11, 2015).

         On July 8, 2015, Petitioner moved for reconsideration of his sentence on the basis that he “was intoxicat[ed] at the time of the crime” and that he is “mentally impotent.” Doc. 17-2, Ex. J. The state district court denied Petitioner's motion. Doc. 17-2, Ex. K. On July 22, 2015, Petitioner filed a pro se petition for writ of habeas corpus in state district court. Doc. 17-2, Ex. L. In his habeas petition, Petitioner argued that there was insufficient evidence to support his convictions, that the district court erred by not granting his directed verdict motion, that toxicology testing should have been performed, and that certain evidence should have been suppressed. Id. He further claimed that his trial counsel was ineffective for: 1) failing to raise the issue of Petitioner's alleged mental incompetence, 2) failing to “do more investigation”, 3) not requesting a mistrial, 4) failing to object to the introduction of the autopsy photographs, and 5) not allowing Petitioner to testify on his own behalf at trial. See id. On September 23, 2015, the state district court summarily dismissed the habeas petition on its merits. Doc. 17-2, Ex. N.

         On October 9, 2015, Petitioner filed a petition for certiorari review. Doc. 17-3, Ex. O. Petitioner again asserted that there was insufficient evidence to support his convictions and that his trial counsel was ineffective for failing to raise the issue of Petitioner's alleged mental incompetence. Id. He further claimed that he was intoxicated and high at the time of his arrest and that his statements to the police were involuntarily given. Id. The New Mexico Supreme Court denied the petition by order on March 10, 2016. Doc. 17-3, Ex. P.

         Petitioner filed the instant petition under § 2254 on May 18, 2016. Doc. 1. The Court ordered Petitioner to amend his petition to cure deficiencies in his initial filing, which he did on November 9, 2016. Doc. 12. Respondents answered on January 11, 2017 (Doc. 17) and the Court granted Petitioner leave to reply to the answer (Docs. 20-22). On February 17, 2017, Petitioner filed a notice asking to delete one of his claims.[2] Doc. 21.

         II. Petitioner's Claims

         Petitioner raises the following grounds for relief in his amended petition:

1. His trial counsel was ineffective for failing to investigate Petitioner's alleged mental incompetence.
2. Although listed under his ineffective assistance of counsel claim, Petitioner also argues that it was error that “the doctor that testified was not the doctor that performed the autopsy.”
3. His trial counsel erred by refusing to introduce “evidence showing that I [Petitioner] ...

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