United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Magistrate Judge Laura
Fashing's Proposed Findings and Recommended Disposition
(Doc. 79) (Report) and movant Michael Dallas's
objections to the Report (Doc. 84). Having reviewed the
record in this case, the Court overrules Dallas's
objections and adopts the magistrate judge's
recommendation to deny Dallas's motion.
Standard of Review
party files timely written objections to the magistrate
judge's recommendation, the district court generally will
conduct a de novo review and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(C);
see also Fed. R. Civ. P. 72(b)(3). To preserve an
issue for de novo review, “a party's objections to
the magistrate judge's report and recommendation must be
both timely and specific.” United States v. One
Parcel of Real Prop., With Buildings, Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St.,
Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).
magistrate judge recommended that the Court deny Dallas's
motion because Dallas's prior felony aggravated battery
convictions under New Mexico law are violent felonies under
the elements clause of the ACCA. See Doc. 79 at
6-10. Because his prior convictions satisfy the elements
clause, Dallas is not entitled to relief under Johnson v.
United States, 135 S.Ct. 2551 (2015). In
Johnson, the Supreme Court invalidated only the
residual clause of the ACCA, not the elements clause.
See Doc. 79 at 3-10; Johnson, 135 S.Ct. at
objections, Dallas argues that the magistrate judge erred in
finding that the felony aggravated battery statute under
which he was convicted requires more than merely touching
another person. Doc. 84 at 3-8. He also argues that the
magistrate judge erred in concluding that the felony
aggravated battery statute's requirement that an unlawful
touching that inflicts great bodily harm (or could inflict
such harm) necessarily requires physical force. See
Id. at 8- 11. He further argues that the magistrate
judge erred in concluding that United States v.
Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008) does not
control this case, see Doc. 84 at 12-14, and that
the magistrate judge erred in applying the modified
categorical approach, see Id. at 14- 15. The Court
will address each of Dallas's arguments in turn.
The Magistrate Judge Correctly Determined that Felony
Aggravated Battery in New Mexico Requires More than a Mere
argues that “[c]ommon law battery is an element of
aggravated battery and the mere touch needed to complete the
offense is not the violent physical force described in
Johnson 1 [Johnson v United
States, 559 U.S. 133 (2010) as necessary to meet the
force clause definition.” Doc. 84 at 3. Common law
battery, however, is a misdemeanor crime distinct from the
aggravated battery statute at issue here, which is a felony.
Compare N.M. Stat. Ann. § 30-3-4 (codifying
common law battery and stating “[w]hoever commits
battery is guilty of a petty misdemeanor”)
with N.M. Stat. Ann. §§ 30-3-5(A), (C)
(describing felony aggravated battery). One “key
distinction between the two battery statutes is the mens rea
requirement.” State v. Skippings,
2011-NMSC-021, ¶ 14, 150 N.M. 216, 258 P.3d 1008, 1012.
“Under the aggravated battery statute, it must be
established that the perpetrator possessed the specific
intent to injure that person or another.” Id.
Felony aggravated battery also requires proof either that the
perpetrator touched the victim with a deadly weapon, or that
the perpetrator touched the victim in a way that caused great
bodily harm or in a way that likely would result in death or
great bodily harm. N.M. Stat. Ann. § 30-3-5(C).
Dallas's argument ignores these additional elements of
felony aggravated battery. When viewed all together, the
elements of felony aggravated battery require “violent
force, ” not merely a touch.
elements of felony aggravated battery involving great bodily
harm are as follows:
1. The defendant touched or applied force to the victim.
2. The defendant intended to injure the victim or another.
3. The defendant either caused great bodily harm to the
victim or acted in a way that would likely result in death or
great bodily harm to the victim.
N.M. R. Ann., Crim. UJI 14-323. “Great bodily harm
means an injury to a person which creates a high probability
of death or results in serious disfigurement or results in
loss of any member or organ of the body or results in
permanent or prolonged impairment of the use of any member or
organ of the body.” N.M. R. Ann., Crim. UJI 14-131
(brackets and footnote omitted).
elements of felony aggravated battery with a deadly weapon
are as follows:
1. The defendant touched or applied force to the victim with