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APPEAL
FROM THE DISTRICT COURT OF OTERO COUNTY James Waylon Counts,
District Judge.
Hector
H. Balderas, Attorney General Santa Fe, NM for Appellee.
Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J.
Forsberg, Assistant Public Defender Albuquerque, NM for
Appellant.
MEMORANDUM OPINION
LINDA
M. VANZI, CHIEF JUDGE.
{1}
Defendant Clifton Stevenson appeals from his convictions,
following a jury trial, of trafficking a controlled substance
(methamphetamine), contrary to NMSA 1978, Section 30-31-20
(2006); abuse of a child, contrary to NMSA 1978, Section
30-6-1(D) (2009); possession with intent to distribute
marijuana/synthetic cannabinoids, contrary to NMSA 1978,
Section 30-31-22(A)(1)(b) (2011); and use or possession of
drug paraphernalia, contrary to NMSA 1978, Section
30-31-25.1(A) (2001). In this Court's notice of proposed
disposition, we proposed to summarily affirm. Defendant filed
a memorandum in opposition (MIO), which we have duly
considered. Remaining unpersuaded, we affirm.
{2}
Suppression.
Defendant
continues to argue that the district court erred in denying
suppression based on a faulty warrant. [MIO 1] Defendant
asserts no new facts, law, or arguments, so we refer
Defendant to our notice of proposed disposition. See
Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M.
754, 955 P.2d 683 ("Our courts have repeatedly held
that, in summary calendar cases, the burden is on the party
opposing the proposed disposition to clearly point out errors
in fact or law."); State v. Mondragon,
1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003
(stating that a party responding to a summary calendar notice
must come forward and specifically point out errors of law
and fact, and the repetition of earlier arguments does not
fulfill this requirement), superseded by statute on other
grounds as stated in State v. Harris, 2013-NMCA-031,
¶ 3, 297 P.3d 374. [CN 3-10] For the reasons stated in
our calendar notice, we conclude that the district court did
not err in denying Defendant's motion to suppress.
{3}
Brady.
Defendant
continues to argue that the district court erred in denying
his motion for a new trial based on a purported Brady v.
Maryland, 373 U.S. 83 (1963), violation. [MIO 1]
Defendant discusses federal law and contends that the United
States Supreme Court as well as several federal circuits have
rejected a "duty of due diligence by the defendant with
regards to Brady violations[.]" [MIO 2; see
also MIO 2-4] Defendant then acknowledges that several
federal circuits do still recognize a due diligence exception
to Brady. [MIO 4-5] Importantly, Defendant also
acknowledges that New Mexico is in line with the latter group
of courts recognizing the exception. [MIO 5-6] Defendant
nonetheless argues that, because our Supreme Court's
opinion in Montoya v. Ulibarri, 2007-NMSC-035, 142
N.M. 89, 163 P.3d 476, relies on case law that traces back to
a 1903 opinion, it has been "imported from a time long
predating Brady" [MIO 6], implying that our
Supreme Court was unaware of Brady, a 1963 opinion,
when it entered its opinion in Montoya in 2007,
instead simply repeating old law without consideration of
Brady or its progeny. [See id.] Defendant
then essentially asks this Court to reconsider our Supreme
Court's holding in light of the fact that "[t]he due
diligence requirement has been made inapplicable in cases
falling under the newly created Brady
violation." [MIO 6] We decline Defendant's
invitation. See Dalton v. Santander Consumer USA,
Inc., 2015-NMCA-030, ¶ 30, 345 P.3d 1086 (stating
that "[a]ppeals in this Court are governed by the
decisions of the New Mexico Supreme Court-including decisions
involving federal law, and even when a United States Supreme
Court decision seems contra" (internal quotation marks
and citation omitted)), rev'd on other grounds,
2016-NMSC-035, 385 P.3d 619. Thus, for the reasons stated in
our notice of proposed disposition and herein, we conclude
that the district court did not err in denying
Defendant's motion for a new trial. [See CN
10-13]
{4}
Ineffective Assistance of Counsel. Defendant
continues to argue that his trial counsel was ineffective for
not interviewing Defendant's wife prior to trial and for
not calling her as a witness. [MIO 7] Defendant contends
that, because we conclude that he could have discovered
certain evidence from his wife prior to trial and, thus,
there was no Brady violation, then his counsel was
ineffective for failing to do so. [See MIO 7] We
disagree.
(5}
We reiterate that, although Defendant could have
discovered his wife's testimony through due diligence-and
the State's failure to provide that information did not,
therefore, constitute a Brady violation-that does
not necessarily mean that he ought to have done so
or that it was crucial to his defense. [See CN
12-13; see also CN 13-14] Indeed, Defendant's
trial counsel's failure to discover something that he
could have discovered through due diligence does not
necessarily constitute ineffective assistance of counsel
because, as we suggested in our notice of proposed
disposition, it is unknown why trial counsel chose not to
interview Defendant's wife, whether and how he would have
used any information gleaned from her during the interview,
and whether it would have in fact been beneficial to
Defendant's defense in light of the fact that the State
would likely have impeached the witness with her prior
statements that Defendant forced her to be involved in the
use and trafficking of methamphetamine and was generally
abusive. [See CN 13-14] Thus, on the record before
us, we cannot say whether Defendant's trial counsel's
failure to interview or call the witness constitutes
ineffective assistance of counsel or trial tactics, and we
cannot say whether, "but for counsel's
[unreasonably] unprofessional errors, the result of the
proceeding would have been different." See State v.
Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d
384 (internal quotation marks and citation omitted).
{6}
Moreover, as we explained in our notice of proposed
disposition, if Defendant continues to believe his
counsel's assistance was ineffective, habeas corpus
proceedings is the preferred avenue to develop the factual
record regarding his trial counsel's performance and
pursue his claim of ineffective assistance of counsel.
See State v. Roybal, 2002-NMSC-027, ¶ 19, 132
N.M. 657, 54 P.3d 61 ("When an ineffective assistance
claim is first raised on direct appeal, we evaluate the facts
that are part of the record. If facts necessary to a full
determination are not part of the record, an ineffective
assistance claim is more properly brought through a habeas
corpus petition[.]"). It is well established that
"[h]abeas corpus proceedings are the preferred avenue
for adjudicating ineffective assistance of counsel claims,
because the record before the trial court may not adequately
document the sort of evidence essential to a determination of
trial counsel's effectiveness." State v.
Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d
494 (internal quotation marks and citation omitted).
{7}
Accordingly, for the reasons stated in our notice of proposed
disposition and herein, we ...