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Boyett v. Smith

United States District Court, D. New Mexico

July 13, 2018

CECIL BOYETT, Petitioner,
v.
R.C. SMITH, et al., Respondents.

          ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.

         The 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.

         I. Background

         This 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.

         At the 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. Id.

         The 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.

         Petitioner 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., ¶¶ 34-35.

         Next, 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.

         On 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 at 19).

         Regarding 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.

         Next, 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.

         Finally, 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 46-48.

         Following 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).

         Petitioner 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).

         The 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. Id.

         Because 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).

         The 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 19.

         Petitioner 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.

         Petitioner 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 has passed.

         Finally, 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, [1] Petitioner is requesting leave to conduct discovery or expand the record under Rules 6 and 7 of the Rules Governing ยง 2254 Proceedings. Respondents contend that ...


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