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Boyett v. United States

United States District Court, D. New Mexico

October 2, 2017

CECIL BOYETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Cecil Boyett's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), (Doc. 1), filed March 27, 2017; Respondents R.C. Smith and Hector Balderas' Answer to Cecil Boyett's pro se Petition for Writ of Habeas Corpus (18 U.S.C. § 2254) [Doc. 1] (the “Response”), (Doc. 11), filed June 30, 2017; the accompanying Record Proper on Appeal (the “Record), (Doc. 12), filed June 30, 2017; and Petitioner's Reply to Respondent's Answer to Petitioner's 28 U.S.C. Section 2254 Petition (the “Reply”), (Doc. 16), filed July 13, 2017. United States District Judge Kenneth J. Gonzales referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 5). Having considered the parties' filings and the relevant law, the Court RECOMMENDS that Petitioner be given fourteen (14) days to amend the Petition to include only claims that Petitioner has exhausted through available state remedies, as further explained below.

         I. Background

         This case arises from the shooting death of Deborah Roach. Although Petitioner disputes several details, the basic facts are that Petitioner shot Ms. Roach in the head, killing her, in front of his house on the afternoon of February 5, 2004. On December 12, 2005, a jury found Petitioner guilty of first-degree willful and deliberate murder in violation of NMSA 1978, Section 30-2-1(A)(1) (1994). (Doc. 11-1 at 1-2). Petitioner was sentenced to life in prison with parole eligibility after thirty years, to be followed by five years of parole. Id. Petitioner appealed his conviction, arguing the trial court erred in denying certain jury instructions and denying Petitioner's motion for a new trial. (Doc. 11-1 at 22-23). The New Mexico Supreme Court affirmed on all grounds. (Doc. 11-2 at 1-21); State v. Boyett, 2008-NMSC-030, 144 N.M. 184, 185 P.3d 555. Petitioner then filed a petition for writ of habeas corpus with the state courts of New Mexico, claiming he was denied his right to effective assistance of counsel and to be present at every stage of the trial. (Doc. 11-2 at 23-39). Following an evidentiary hearing, (Docs. 11-3, 11-4), the state court found Petitioner was not denied either right. (Doc. 11-5 at 17-25). Specifically, the state court found Petitioner's trial counsel pursued a plausible, rational trial strategy, therefore Petitioner received effective assistance, and no juror was replaced outside Petitioner's presence, therefore he was present at all stages of trial. Id. at 24-25. Petitioner filed a petition for writ of certiorari with the New Mexico Supreme Court, (Doc. 11-5 at 27-37), which was denied, (Doc. 11-5 at 48). Petitioner subsequently filed the instant Petition.

         In the Petition, Petitioner claims four grounds for relief: (1) ineffective assistance of counsel; (2) denial of his right to be present at all critical stages of trial; (3) denial of his right to due process; and (4) withholding of exculpatory evidence. (Doc. 1 at 5-10). The second and fourth grounds are straightforward. Regarding denial of his right to be present at all critical stages of trial, Petitioner alleges a juror was replaced with an alternate outside of his presence. (Doc. 1 at 7). As for withholding exculpatory evidence, Petitioner contends the trial prosecutor withheld evidence, specifically a “safety contract” written by the victim in which she promised to tell someone if she became “suicidal or too depressed.” (Doc. 1 at 10).

         Petitioner's ineffective assistance claim contains several component claims of deficient performance and prejudice. First, Petitioner alleges his trial counsel was ineffective by failing to present expert testimony regarding head injuries he has suffered, which, he alleges, affected his ability to form specific intent to murder. (Doc. 1 at 5). Further, Petitioner claims his counsel failed to call an expert to rebut a computer-generated reenactment of the crime scene. Id. Finally, Petitioner argues DNA testing would have “clearly established” Petitioner and the victim's positions. Id. Regarding his right to due process under the Fourteenth Amendment, Petitioner alleges the trial court denied him due process by denying jury instructions on inability to form specific intent, defense of habitation, and self-defense. Id. at 8. Petitioner also alleges his right to call expert witnesses for rebuttal was violated. Id.

         Respondents argue that the Petition fails, at least initially, because Petitioner has failed to exhaust available state court remedies as required by § 2254(b)(1)(A). First, Respondents contend that Petitioner failed to raise a number of arguments about why his counsel was ineffective in the underlying state proceedings; therefore, Petitioner failed to exhaust available state court remedies regarding those arguments. (Doc. 11 at 5-6). Respondents further argue Petitioner failed to exhaust his claims regarding exculpatory evidence and a jury instruction on self-defense. Id. at.7-8. Respondents admit Petitioner exhausted available remedies regarding one expert witness, two of the jury instruction issues, and the allegedly replaced juror. Id. 6-7. Respondents do not object to dismissing the Petition without prejudice because it is mixed or allowing Petitioner to delete the unexhausted claims and proceed with the exhausted claims. Id. at 14-15. Finally, if Petitioner amends the Petition, Respondents request a “reasonable time” in which to amend the Response, presumably to argue the merits of the Petition. Id. at 14.

         In his Reply, Petitioner argues the merits of the Petition and raises several new arguments. (Doc. 16 at 1-15). Regarding exhaustion, Petitioner denies that the Petition is “mixed” and asks that any of Respondents' claims regarding failure to exhaust be waived in the interests of justice. Id. at 17. Petitioner indicates he wishes to avoid another multi-year “battle” in New Mexico state courts. Id. at 22. Petitioner asks that if the Petition is found to be “mixed, ” the Court decide it on the merits. Id. at 23. Finally, Petitioner specifically asks that the Petition not be dismissed, and that he be allowed to dismiss only the unexhausted claims and proceed with exhausted claims. Id.

         II. Analysis

         a. Governing Law and Standards of Review

         Under 28 U.S.C. § 2254, a person in state custody may petition a federal court for relief on the ground that he is in custody in violation of the United States Constitution or laws. § 2254(a). A petition under § 2254 may not be granted unless the state court judgment: (1) resulted in a decision contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented. §§ 2254(d)(1)-2). Factual findings are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence. § 2254(e)(1).

         Further, a § 2254 petition may not be granted unless the petitioner has “exhausted remedies available in the courts of the State.” § 2254(b)(1)(A). A petitioner has not exhausted available remedies “if he has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). In to exhaust a claim, the “federal claim must be fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971); see also Anderson v. Harless, 459 U.S. 4 (1982). “Fair presentation” means “that the substance of the claim must be raised in state court.” Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009), abrogated on other grounds by Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). Both the “allegations and supporting evidence must offer the state courts ‘a fair opportunity to apply controlling legal principles to the facts bearing upon [a] constitutional claim.'” Id. (quoting Anderson, 459 U.S. at 6).

         A petitioner need only present a claim once, either through direct appeal or collateral review. See Brown v. Allen, 344 U.S. 443, 447 (1953) (stating it “is not necessary . . . for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review.”); Dever v. Kan. State Penitentiary, 288 F.3d 1231, 1235-36 (10th Cir. 2002) (“The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.”). However, a petitioner must have exhausted all claims in the § 2554 motion. Rose v. Lundy, 455 U.S. 509, 513-22 (1982); see Rhines v. Weber, 544 U.S. 269, 274-276 (2005) (discussing how § 2254 “preserved Lundy's total exhaustion requirement”).

         If a petitioner has not exhausted all claims in his § 2254 petition, the petition is “mixed” and the Court may: (1) dismiss the entire petition without prejudice; (2) stay the petition and hold it in abeyance while the petitioner exhausts the unexhausted claims; (3) allow the petitioner to dismiss the unexhausted claims and move forward only with the exhausted claims; or (4) ignore the exhaustion requirement and deny the petition on the merits if none of the claims are meritorious. Fairchild v.Workman,579 F.3d 1134, 1156 (10th Cir. 2009) (quoting Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). If the Court denies the petition, it must do so entirely either with or without prejudice; the Court cannot dismiss some claims with prejudice and others without prejudice. See Moore v. Schoeman,288 F.3d 1231, 1235 (10th Cir. 2002) (stating “individual, unexhausted claims may be denied, but only if the result allows ...


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