United States District Court, D. New Mexico
ALREE B. SWEAT, III, Petitioner,
JAMES MULHERON, Warden, Respondent.
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
Sweat, an inmate confined at the Southern New Mexico
Correctional Facility, petitions the Court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Broadly,
Sweat challenges three convictions in 2015 for burglary of a
vehicle, see N.M. Stat. Ann. §30-16-3(B),
following a jury trial in the Third Judicial District Court
for Dona Ana County. From what the Court can discern, Sweat
asserts (1) his attorney at trial was ineffective; (2) the
evidence was insufficient to support his convictions; and (3)
he was denied a speedy trial. (Docs. 1, 6 & 15).
Sweat's jailor, James Mulheron, contends Sweat has not
“exhausted” remedies available to him for
all claims and therefore afforded the New Mexico
courts a first opportunity to correct alleged constitutional
deficiencies. As such, Mulheron says the Court may dismiss
Sweat's petition to allow Sweat to return to the state
court. Acting pursuant to an order of reference, see
28 U.S.C. § 636(b)(1)(B); (Doc. 9), the Court has
considered the parties' submissions as well as the
record. Having done so, the Court agrees that Sweat has not
demonstrated exhaustion of remedies and, therefore,
RECOMMENDS that Sweat's petition be
DISMISSED or Sweat, at his election, be
permitted to proceed in this Court only as to those claims he
has properly exhausted.
habeas corpus relief is unavailable to an inmate unless the
inmate has exhausted state court remedies. See Day v.
McDonough, 547 U.S. 198, 205 (2006). Section 2254
specifically prohibits the Court from granting “an
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court”
until the inmate exhausts, there is no process for
exhausting, or “circumstances exist that render such
process ineffective to protect the rights of the
[inmate].” 28 U.S.C. § 2254(b)(1). The burden is
on the inmate to show exhaustion or some exception thereto.
McCormick v. Kline, 572 F.3d 841, 851 (10th Cir.
2009). Sweat does not contend New Mexico lacks available
remedies or that the relief afforded does not protect his
rights. Thus, the question is whether Sweat adequately
pursued those remedies.
inmate properly exhausts when he “fairly
presents” his federal constitutional claims to the
state courts. See Picard v. Connor, 404 U.S. 270,
275 (1971). As a matter of comity, exhaustion allows the
state courts one full “opportunity to pass upon and
correct alleged violations of [their] prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (internal quotation marks omitted).
“One full opportunity” means the inmate must
present his federal challenges “to the highest state
court, either by direct review of the conviction or in a
post-conviction attack.” Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Additionally, the inmate must identify the “substance
of a federal habeas corpus claim” to adequately
exhaust. See Picard, 404 U.S. at 278. An inmate
complies, substantively, when he references “a specific
federal constitutional guarantee, as well as [provides] a
statement of the facts that entitles the petitioner to
relief.” Gray v. Netherland, 518 U.S. 152,
162-63 (1996); Demarest v. Price, 130 F.3d 922, 932
(10th Cir. 1997).
case, Sweat made two “presentations” to the New
Mexico Supreme Court. After losing his direct appeal in the
New Mexico Court of Appeals, Sweat petitioned for a writ of
certiorari. Sweat raised a single question for review:
whether the court of appeals erred “in holding the
State presented sufficient evidence to sustain Alree
Sweat's convictions for burglary of a vehicle where the
only evidence of his identity was possibly contaminated DNA
evidence[.]” (Doc. 17-1, at 51). Following the state
trial court's summary denial of habeas relief, Sweat
petitioned the New Mexico Supreme Court for discretionary
review. See N.M. Rule Ann. 5-802(L). Sweat attacked
his convictions on eight grounds: (1) the trial court failed
to join all vehicle burglary charges in a single case; (2) a
jury verdict in Sweat's favor in a separate case
precluded further prosecution; (3) the trial court's
failure to adhere to N.M. Rule Ann. 5-802(G)(1) violated his
federal and state constitutional rights; and trial counsel
was ineffective for (4) performing a deficient investigation;
(5) not expanding the docketing statement; (6) failing to
raise chain of custody issues; (7) withdrawing Sweat's
speedy trial rights; and (8) not filing a motion to suppress.
(Doc. 17-2, at 68-76).
the issues raised in this federal action to those
presented to the New Supreme Court, Sweat has not exhausted
his available state remedies for all claims. From what the
Court can discern, Sweat has only given the New Mexico courts
one full opportunity to adjudicate whether “the State
presented sufficient evidence to sustain Alree Sweat's
convictions” as appealed directly and whether trial
counsel was ineffective for performing a deficient
investigation; not expanding the docketing statement;
withdrawing Sweat's speedy trial rights; and not filing a
motion to suppress, as encompassed in Sweat's petition
for certiorari following the state trial court's denial
of collateral review. In other words, Sweat's petition
for habeas relief in this Court is “mixed, ” in
that it contains both exhausted and unexhausted claims.
presented with a mixed petition, the Court may not simply
dismiss the unexhausted claims and reach the merits of those
that have been presented to the state courts. See Wood v.
McCollum, 833 F.3d 1272, 1274 (10th Cir. 2016). Instead,
the Court must (1) dismiss the mixed petition in its
entirety; (2) stay the petition and hold it in abeyance while
the petitioner returns to state court to raise his
unexhausted claims; (3) permit the petitioner to dismiss the
unexhausted claims and proceed with the exhausted claims; or
(4) ignore the exhaustion requirement altogether and deny the
petition on the merits if none of the petitioner's claims
has any merit. Fairchild v. Workman, 579 F.3d 1134,
1156 (10th Cir. 2009). Typically, a stay abating the petition
is reserved for instances where the inmate shows “good
cause” for failing to present the claims before the
state court in the first instance, and the unexhausted claims
are not “plainly meritless.” Rhines v.
Weber, 544 U.S. 269, 277 (2005).
of the available options, the Court recommends that
Sweat's petition be dismissed in its entirety unless
Sweat decides he would like to dismiss the unexhausted
claims. A stay is not appropriate because Sweat has not made
any showing of good cause. Nor does the Court believe it
advisable or beneficial to ignore the exhaustion requirements
and address the merits of the claims. An appropriate balance,
therefore, is to allow Sweat to determine whether he would
like to proceed only with the exhausted claims by filing a
written notice dismissing the remainder of his challenges. If
Sweat elects this option, he should know he likely will
forfeit the unexhausted claims altogether. See 28
U.S.C. § 2244(b)(1); Tapia v. Lemaster, 172
F.3d 1193, 1195 (10th Cir. 1999) (a petitioner who elects to
proceed only on exhausted claims must meet the requirements
for filing a successive petition to later raise the
unexhausted challenges). Also, if Sweat does not choose to
dismiss the unexhausted claims, the Court's
recommendation, if adopted, means dismissal of the petition
without prejudice. Although Sweat could return to the New
Mexico courts to exhaust his remedies, Sweat may face statute
of limitations problems for any future habeas petition in
this court. See 28 U.S.C. § 2244(d)(1)
(imposing a one-year limitation period from the date the
judgment becomes final after direct review).
reasons stated above, Sweat has not exhausted available state
remedies for all of his claims.
Court RECOMMENDS dismissal of Sweat's
mixed petition in its entirety subject to Sweat first being
permitted to voluntarily dismiss his unexhausted claims by
filing a document so stating within thirty days from the
Court's adoption of this recommendation.
FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT
PARTY MAY, PURSUANT TO 28 U.S.C. § 636(B)(1), FILE
WRITTEN OBJECTIONS TO SUCH PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS WITH THE CLERK
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT
PARTY WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO
APPELLATE REVIEW WILL BE ALLOWED. PURSUANT TO ...