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Thomas v. Hatch

United States District Court, D. New Mexico

January 4, 2018

EDGAR RAY THOMAS, Petitioner,
v.
TIMOTHY HATCH, WARDEN, and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JOEL M. CARSON III UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         BACKGROUND

         Thomas, 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.

         On that 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. Id.

         As 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.”[1] When officers informed Thomas he would be shot if he continued to move, he complied with their commands and was handcuffed. Id.

         Officers 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.

         As a 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)

         Thomas' 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).

         Following 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.

         Thomas 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. Id.

         In 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.

         While 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. Id.

         In a 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 ...


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