United States District Court, D. New Mexico
ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on Chief Magistrate Judge
Carmen E. Garza's Proposed Findings and Recommended
Disposition (the “PFRD”), (Doc. 24), filed
March 20, 2018; and Petitioner Cecil Boyett's
Objections to the U.S. Magistrate's
Recommendations/Findings on Petitioner's 28 U.S.C.
Section 2254 Petition for Writ of Habeas Corpus filed March
27, 2018 (the “Objections”), (Doc. 25),
filed March 29, 2018. In the PFRD, the Chief Magistrate Judge
found that Petitioner is not entitled to relief under 28
U.S.C. § 2254, and therefore recommended denying
Petitioner's Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus (the “Petition”),
(Doc. 1) and his Motion for Order of Release from
Custody; Second Request for Appointment of Counsel (the
“Motion for Release”), (Doc. 19). (Doc. 24 at
19). Also before the Court is Petitioner's Motion to
Produce; or in the Alternative-Issuance of Subpoena to April
Perea, State Trial Jury Member-Pursuant to Rule 45(3)(c)(i),
Fed. Rules of Civil Procedure (the “Motion to
Produce”), (Doc. 26), filed June 18, 2018;
Respondents' Response in Opposition to
Plaintiff's Motion to Produce; or in the Alternative
Issuance of Subpoena to April Perea, State Trial Jury
Member-Pursuant to Rule 45(3)(c)(i), Fed. Rules of Civil
Procedure [Doc. 26], (Doc. 27), filed June 25, 2018; and
Petitioner's Reply in Opposition to
Respondent's Response in Opposition to Plaintiff's
Motion to Produce; or in the Alternative . . . , (Doc.
28), filed July 2, 2018.
parties were informed that objections to the PFRD were due
within fourteen days. Id. Petitioner timely objected
to the PFRD. (Doc. 25). Respondents did not object to the
PFRD or respond to the Objections, and the time for doing so
has passed. See Rule 12 of the Rules Governing
Section 2254 Proceedings in the United States District Courts
(the “Rules Governing § 2254 Proceedings”);
Fed.R.Civ.P. 72(B)(2). Following a de novo review of
the Petition, Motion for Release, PFRD, Objections, and
Motion to Produce, the Court will overrule the Objections,
adopt the PFRD, deny the Petition, Motion for Release, and
Motion to Produce, and dismiss this case with prejudice.
case arises from Petitioner's trial and conviction
related to the shooting death of Deborah Roach. On February
5, 2004, Petitioner shot Ms. Roach, killing her, in front of
his house. Petitioner pursued two defenses at trial: first,
that he was innocent because he shot Ms. Roach in
self-defense, defense of another, and defense of his home, or
“habitation;” and second, that he was innocent of
first-degree murder because he was incapable of forming
specific intent to murder at the time of the incident. (Doc.
11-2 at 4-5). In support of these theories, Petitioner
testified that he knew Ms. Roach regularly carried a gun,
that she drew her gun first, and that he shot her before she
could shoot him. Id. Petitioner also testified that
he suffered serious brain injuries years earlier, and he
theorized those injuries made him incapable of forming the
intent to murder. Id. at 13-14. Petitioner also
planned to call an expert witness in support of his
incapacity theory. Id. at 4-5; see (Doc.
22-1 at 2). However, before her scheduled testimony, the
expert witness informed Petitioner's counsel she would
not testify on his behalf. (Doc. 22-1 at 2). Petitioner did
not call any other experts or request a continuance to do so.
conclusion of trial, Petitioner requested jury instructions
on both of his theories. The trial court granted instructions
on self-defense and defense of another, but denied
instructions on defense of habitation or inability to form
specific intent. (Doc. 12-2 at 33-34). The trial court first
declined to instruct on defense of habitation because there
was no evidence Petitioner shot Ms. Roach inside his home,
which the trial judge thought was necessary under New Mexico
law. (Doc. 11-2 at 5). The trial court next denied an
instruction on inability to form specific intent because it
required expert testimony and none had been provided.
jury found Petitioner guilty of first-degree, willful and
deliberate murder in violation of NMSA 1978, Section
30-2-1(A)(1) (1994). (Doc. 11-1 at 1-2). Petitioner filed a
motion for a new trial, arguing in part that he was
prejudiced by the lack of expert testimony on his ability to
form specific intent. (Doc. 22-1 at 2, 11-13). The trial
court denied the motion and imposed the mandatory
life-sentence. Id. at 25-26.
then appealed his conviction, arguing the trial court erred
by denying his requested jury instructions and his motion for
a new trial. (Doc. 11-1 at 22-23). The New Mexico Supreme
Court affirmed on all grounds. (Doc. 11-2 at 1-21); State
v. Boyett, 2008-NMSC-030, 144 N.M. 184, 185 P.3d 555.
First, the court affirmed the denial of an instruction on
defense of habitation. The court reasoned that, in New
Mexico, defense of habitation requires evidence that the
commission of a felony inside the home was imminent and that
deadly force was necessary to prevent the commission of the
felony. Boyett, 2008-NMSC-030, ¶ 15. The court
found that such evidence was absent in Petitioner's case.
Id., ¶ 25. Second, the court agreed that expert
testimony was necessary to link Petitioner's brain injury
with his alleged inability to form specific intent; therefore
the court found that the trial court properly denied the
instruction. Id., ¶ 29. Finally, the court held
that the trial court did not err in denying the motion for a
new trial because Petitioner failed to show how he was
prejudiced by the lack of expert testimony. Id.,
Petitioner filed a petition for writ of habeas corpus in
state court, claiming he was denied his rights to effective
assistance of counsel and to be present at every stage of the
trial. (Doc. 11-2 at 23-39). Petitioner argued his trial
counsel was ineffective in part by failing to ask for a
continuance or secure a different expert witness. (Doc. 1 at
5). Petitioner also claimed that he was denied his right to
be present at all critical stages of trial because a juror
was replaced with an alternate outside his presence.
Id. at 7.
April 13, 15, and 18, 2016, the Thirteenth Judicial District
Court of New Mexico held an evidentiary hearing and heard
testimony from several witnesses. First, Petitioner testified
that at the end of trial the jury was sworn in and dismissed
for lunch, and when they returned, an alternate juror was in
the jury box while an original juror, April Perea, was seated
in the gallery. (Doc. 11-3 at 14-17). Susan McLean, the trial
prosecutor, testified that Petitioner's recollection was
mistaken. (Doc. 11-4 at 42-47). Ms. McLean testified instead
that the jurors were sworn in and sequestered, not dismissed,
and returned to court to render their verdict, and that no
juror was replaced. Id. Further, Ms. McLean
testified the trial judge always polled jurors by name, and
that the trial record shows Ms. Perea was polled by name.
Id. The trial transcript, which was before the state
habeas court, reflects that Ms. Perea was polled by name.
(Doc. 22-1 at 31); (Doc. 11-4 at 45); see (Doc. 11-5
Petitioner's inability to form specific intent, Dr. Susan
Cave testified on Petitioner's behalf. (Doc. 11-3 at 17).
Dr. Cave stated that if she had been called as an expert
witness at trial, she would have testified that Petitioner
could not form specific intent at the time of incident due to
a combination of factors, including his brain injuries.
Id. at 31-32. On cross examination, Dr. Cave opined
that it was “highly likely” that Petitioner's
“ability to form specific intent was likely
impaired.” Id. at 37. Dr. Cave's opinion,
“to a reasonable degree of certainty, ” was that
Petitioner was not capable of forming specific intent to kill
at the time of the incident. Id. at 52.
Sheila Lewis, Petitioner's appellate counsel, testified
that Petitioner's trial counsel was ineffective due to
his failure to secure an expert like Dr. Cave. (Doc. 11-4 at
7). Ms. Lewis believed it was ineffective assistance, rather
than a tactical decision, given trial counsel's proposed
jury instructions and the motion for a new trial.
Id. at 12-13, 17-23. On questioning by the state
court, Ms. Lewis agreed that a reasonable trial attorney
could have chosen to abandon the incapacity theory, but she
maintained that Petitioner's trial counsel did not
consciously choose to abandon the theory. Id. at 15,
21-22. Instead, Ms. Lewis felt that Petitioner's trial
counsel negligently failed to pursue the incapacity theory.
Id. at 22-36.
attorney Paul Kennedy testified as an expert witness in
criminal defense litigation. (Doc. 22-1 at 31-71). In
response to Ms. Lewis' testimony, Mr. Kennedy stated
there is inherent tension between defenses based on
self-defense and an inability to form specific intent.
Id. at 43-46. Mr. Kennedy testified it can be
difficult to explain to jurors how a defendant is unable to
form specific intent to kill but still able to intentionally
defend himself. Id.; see Id. at 65.
Further, Mr. Kennedy believed the self-defense theory was
stronger than the incapacity theory. Id. at 41-47.
In Mr. Kennedy's opinion, emphasizing self-defense over
incapacity was a reasonable trial tactic. Id. at
the evidentiary hearings, the state court found Petitioner
was not entitled to relief under either of his claims. (Doc.
11-5 at 17-25). First, the state court found Petitioner's
trial counsel pursued a plausible, rational trial strategy;
therefore Petitioner received effective assistance of
counsel. Id. at 24-25. Second, the court found that
no juror was replaced outside Petitioner's presence;
therefore he was present at all stages of trial. Id.
at 24-25. Petitioner filed a petition for writ of certiorari
with the New Mexico Supreme Court, (Doc. 11-5 at 27-37). That
petition was denied, (Doc. 11-5 at 48).
subsequently filed the instant Petition. As originally filed,
the Petition contains four broad claims: (1) ineffective
assistance of counsel; (2) denial of the right to be present
at all critical stages of trial; (3) denial of the right to
due process; and (4) prosecutorial misconduct. (Doc. 1 at
5-10). The Petition and supporting documents included several
other claims, for instance that the trial judge should have
recused himself because of his personal and business
relationship with Petitioner's trial counsel, (Doc. 1 at
25); that New Mexico Supreme Court Justice Petra Jimenez Maes
improperly participated in Petitioner's case after
recusing herself, (Doc. 1 at 16); and that Petitioner was
denied his right to compulsory process, (Doc. 16 at 4).
Chief Magistrate Judge reviewed the Petition and found that
it contains four exhausted claims under § 2254(b)(1)(A):
(1) ineffective assistance of counsel due to trial
counsel's failure to present expert testimony about
Petitioner's brain injuries; (2) denial of
Petitioner's right to be present at all stages of trial;
(3) denial of due process arising from the denial of the
defense of habitation jury instruction; and (4) denial of due
process arising from the denial of the inability to form
specific intent jury instruction. (Doc. 17 at 14-15). The
Chief Magistrate Judge found that all other claims in the
Petition were not properly before this Court because
Petitioner had not presented them in state court.
the Petition contained both exhausted and unexhausted claims,
the Chief Magistrate Judge recommended allowing Petitioner to
choose between amending his Petition to contain only
exhausted claims, or dismissing the Petition without
prejudice so he could exhaust all of his claims. Id.
at 16-17. The Chief Magistrate Judge explained that if
Petitioner chose to amend the Petition to delete his
unexhausted claims, those claims would be deemed abandoned.
Id. Petitioner chose to voluntarily dismiss all
claims except for the four identified as exhausted. (Doc. 18
at 2-3). Petitioner also filed his Motion for Release, asking
to be released from state custody pending a ruling on the
Petition. (Doc. 19).
Chief Magistrate Judge proceeded to analyze Petitioner's
four exhausted claims. (Doc. 24). The Chief Magistrate Judge
explained that, under § 2254, Petitioner must show that
the state courts' decisions were contrary to or an
unreasonable application of clearly established federal law,
or that they were unreasonable determinations of fact. §
2254(d). The Chief Magistrate Judge found that the state
habeas court's decision that Petitioner's trial
counsel was not ineffective was not contrary to federal law.
(Doc. 24 at 11-12). In addition, the Chief Magistrate Judge
found that the state habeas court's conclusion that Ms.
Perea was not replaced outside Petitioner's presence was
not unreasonable given the evidence and testimony presented.
Id. at 13-15. Finally, the Chief Magistrate Judge
found that the denial of Petitioner's requested jury
instructions was not contrary to or an unreasonable
application of federal law. Id. at 15-18. The Chief
Magistrate Judge therefore recommended that Petitioner's
Petition and Motion for Release be denied. Id. at
has timely objected to the PFRD. Petitioner states generally
that the state proceedings were fundamentally unfair to him,
referring to Justice Maes' participation in his case.
(Doc. 25 at 2). Petitioner poses a number of questions for
the Court to consider, including: “Did the state habeas
court err by disregarding expert witness testimony in favor
of defendant?”; “Did the court err by failing to
produce April Perea for required testimony?”; and
“Did the court err by failing to grant Defendant a new
trial based on multiple constitutional violation
claims?” Id. at 4. Petitioner argues that
§ 2254's standard of review does not apply in his
case because he claims he is actually innocent of first
degree murder, and also argues that he is entitled to an
evidentiary hearing because he diligently developed his
claims in state court. Id. at 5, 10.
reiterates that his trial counsel was ineffective for failing
to secure expert witness testimony and cites several cases in
support of this argument. Id. at 6-7, 9-11. In
addition, Petitioner raises his prior arguments that the
trial court judge should have recused himself and that his
right to compulsory process was violated. Id. at
7-8. Petitioner also raises two new arguments in his
Objections: first, that the trial court erred by denying a
motion for a directed verdict, id., and second that
the “equity of the statute” rule was not applied
in his case, id. at 11-12. Petitioner did not object
to the Chief Magistrate Judge's analysis of any claim
other than ineffective assistance of counsel or to the
recommendation regarding his Motion for Release. Respondents
did not respond to the Objections, and the time for doing so
Petitioner has filed a Motion to Produce a statement from Ms.
Perea. (Doc. 26). Petitioner asks that the Court order a
government attorney to find Ms. Perea and take a statement
from her. Id. at 1-2. Alternatively, Petitioner asks
for permission to subpoena Ms. Perea. Id. at 3.
Liberally construed,  Petitioner is requesting leave to conduct
discovery or expand the record under Rules 6 and 7 of the
Rules Governing § 2254 Proceedings. Respondents contend