United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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.
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.
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
January 16, 2013, Petitioner appealed his convictions to the
New Mexico Supreme Court. 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,
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.
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.
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. Doc. 21.
raises the following grounds for relief in his amended
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] ...