United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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.
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.
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.
Governing Law and Standards of Review
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).
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).
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”).
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 ...