United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
M. CARSON III UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Petitioner Edgar Ray
Thomas' (“Thomas”) Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. §2254 by a person in
state custody (Doc. 1)(“Petition”). Thomas filed
the Petition on August 28, 2017. Respondents, Thomas Hatch,
the Warden of the Penitentiary of New Mexico, and the
Attorney General of the State of New Mexico, filed their
response on October 3, 2017. (Doc. 8). On August 29, 2017,
United States District Judge William P. Johnson referred this
matter to the undersigned to conduct hearings as warranted,
and to perform any legal analysis required to recommend an
ultimate disposition of the case. (Doc. 3). For the reasons
set forth below, the Court RECOMMENDS that the Petition be
denied and the case be dismissed with prejudice.
an inmate at the Penitentiary of New Mexico, is serving a
ten-year sentence imposed by the state district court
pursuant to a plea agreement. (Doc. 1, p. 1-2). The plea
agreement resolved three then pending criminal actions the
State of New Mexico filed against Thomas. The one most
relevant to this proceeding related to conduct Clovis, New
Mexico police officers observed in the early morning of April
15, 2013. Id.
morning, Clovis police officers responded to a reported
hostage situation at a local convenience store. (Doc. 8-1, p.
50-52). Upon arrival, officers observed Thomas sitting in the
driver's seat of a vehicle with the driver's-side
door open. Id. Thomas was pointing a firearm at the
alleged hostage, who was lying on the ground next to the car.
officers arrived, Thomas climbed out of the vehicle while
holding the firearm. Id. Law enforcement ordered
Thomas to place the firearm on the seat of the vehicle and
raise his hands in the air. Id. Thomas complied.
Id. Thomas then followed officers' commands to
drop to his knees-but he did not remain in that position.
According to officers, “[Thomas] started acting weird
and tried to get up from his knees.” Id. One
officer believed “[Thomas] looked confused and kept
trying to get up.” When officers informed Thomas he would
be shot if he continued to move, he complied with their
commands and was handcuffed. Id.
learned during their investigation that Thomas approached the
victim in the store parking lot and asked to use his phone.
Id. After the victim complied, Thomas required him
to walk at gunpoint behind the car and toward the gas pumps.
Id. Thomas forced the victim to his knees and asked
him to call 911. Id. Thomas then took the
victim's cell phone and keys and made him walk toward the
victim's car while holding his revolver in the
victim's side. Id.
result of his conduct that day, authorities charged Thomas
with second-degree armed robbery, false imprisonment,
aggravated assault (with a deadly weapon), and fourth-degree
possession of a firearm by a felon. Upon different facts and
events, authorities later charged Thomas with fourth-degree
battery upon a peace officer and concealing identity. In yet
another case, authorities charged Thomas with assault upon a
peace officer. The office of the Public Defender represented
Thomas in the three criminal actions. (Doc. 8-1, p. 4-5)
counsel believed good cause existed for the Court to order a
forensic evaluation. Accordingly, counsel sought an order
requiring the New Mexico Department of Health to conduct a
confidential forensic evaluation to determine Thomas'
competence at the time of the convenience store incident.
(Doc. 8-1, p. 29-30). The evaluation resulted in a stipulated
order in which Thomas (through counsel) and the State
accepted the psychologist's conclusion that Thomas was
“competent at the time of the alleged offense, and that
[he was] currently competent to stand trial.” (Doc.
8-1, p. 28).
entry of the stipulated order, Thomas' counsel engaged in
plea negotiations with prosecutors to resolve the three cases
then pending against Thomas. Although Thomas faced up to
thirty years in prison, counsel negotiated a plea agreement
guaranteeing he would serve no more than ten years. (Doc.
8-1, p. 4). On April 24, 2014, Thomas agreed to the terms of
the plea agreement (Doc. 8-1, p. 4). Particularly relevant to
this case, Thomas agreed to give up his right: (1) to a
trial; (2) to compel the attendance of witnesses; and (3) to
cross-examine witnesses. Id. In addition to
Thomas' signature reflecting his assent to the terms of
the agreement, the Plea Agreement certified his counsel
reviewed the agreement with Thomas, discussed the case with
Thomas, and advised him of his constitutional rights and all
possible defenses. Id. Thomas does not allege, and
the record contains no evidence that, he informed his counsel
or the state district court that he accepted a plea only
because his counsel failed to interview or call certain
witnesses at trial. Id. And, the record contains no
evidence impeaching or undermining the expert opinion
generated at Thomas' request which found him competent at
the time of the convenience store incident.
personally appeared before the state district court. The
judge executed the plea agreement and concluded, among other
things, that Thomas understood: (1) he was giving up his
right to a trial; (2) he was giving up the right to cross
examine witnesses; and (3) he was giving up the right to
compel witnesses of his choosing to appear and testify.
accordance with the Plea Agreement, the state district court
entered a Judgment, Sentence and Order Determining Habitual
Offender Status and sentenced Thomas to ten years in prison-a
sentence within, but at the high-end of the agreed upon
range. (Doc. 8-1, p. 1). On August 11, 2014, Thomas caused
his attorney to file a Motion to Reconsider Sentence. Thomas
complained that the state district court should reconsider
his sentence because the court was not aware he was mentally
unstable at the time of the armed robbery. Thomas further
argued that because his counsel did not elicit testimony from
witnesses he subpoenaed from the Curry County Detention
Center, the court did not hear (what he believed to be)
important testimony. Thomas also sought relief based upon
additional unspecified and unsupported complaints about his
trial counsel. Id.
the Motion to Reconsider Sentence was pending, Thomas filed a
pro se Petition for Writ of Habeas Corpus in the Ninth
Judicial District Court, Curry County, New Mexico. (Doc. 8-1,
p. 11). The Petition largely tracked the allegations
contained in the Motion to Reconsider Sentence, but expanded
on some issues. Id. Specifically, the Petition more
thoroughly explained Thomas' alleged erratic behavior on
the night of April 15, 2013, in the convenience store parking
lot. Id. The Petition alleged hospital employees
were willing to testify “that there was something wrong
with Thomas' mental state, ” but that his attorney
did not interview them and did not want to subpoena them.
Id. Thomas also complained that his attorney did not
show up for most of the hearings, which other attorneys
covered. Id. Thomas claimed this alleged pattern
made it difficult for Thomas to discuss his case with counsel
and “made the overall structure of the case suffer
because [SIC] attorney could not build a strong defense
___” Id. Thomas argued these failures by his
counsel amounted to ineffective assistance of counsel.
Decision and Order of Summary Dismissal, the state district
court addressed and denied all of the grounds Thomas raised
in both his habeas petition and his Motion to Reconsider
Sentence. (Doc. 1, p. 17). Thomas timely filed an appeal to
the New Mexico Supreme Court, which denied review on July 25,
2017. Thomas then timely filed ...