United States District Court, D. New Mexico
SERGIO T. JAMES, Petitioner,
RAYMOND SMITH, Warden, and HECTOR H. BALDERAS, Attorney General for the State of New Mexico, Respondents.
ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
MATTER comes before the Court on the Magistrate
Judge's Proposed Findings and Recommended Disposition
(“PF&RD”) (Doc. 23), filed August 9,
2018, and on Petitioner's Objections to that PF&RD
(“Objections”) (Doc. 24), filed August
23, 2018. Because they lack merit, the Court will overrule
the objections and adopt the PF&RD.
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus, Sergio James (“Petitioner”) challenges
two state court convictions out of the Ninth Judicial
District Court of New Mexico: docket number
D-0905-CR-2011-00382 (“No. 382”) and docket
number D-0905-CR-2011-00383 (“No. 383”). Doc.
1 at 1. The Petition includes four grounds for relief.
The Magistrate Judge issued a Partial PF&RD on November
13, 2017, recommending that habeas relief be denied for the
claims raised in Grounds One, Two, and Four of the Petition.
Doc. 15. Additionally, the Magistrate Judge
recommended denying relief on Ground Three with respect to
No. 382. Id. After addressing Petitioner's
objections, the undersigned adopted those recommendations and
dismissed Grounds One, Two, and Four and Ground Three
specific to No. 382. Doc. 20. The undersigned also
ordered supplemental briefing regarding Ground Three in No.
383. Id. The parties filed supplemental briefs
(Docs. 21, 22), and the Magistrate Judge
entered a second PF&RD on August 9, 2018, recommending
that the remaining claim, Ground Three in No. 383, be
dismissed (Doc. 23). Petitioner filed objections to
the PF&RD on August 23, 2018. Doc. 24.
party files timely written objections to a magistrate
judge's recommendation, the district court will conduct a
de novo review and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
636(b)(1). De novo review requires the district
judge to consider relevant evidence of record and not merely
to review the magistrate judge's recommendation. In
re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995).
“[A] party's objections to the magistrate
judge's [PF&RD] must be both timely and specific to
preserve an issue for de novo review by the district
court or for appellate review.” United States v.
One Parcel of Real Prop., with Buildings, Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1060 (10th
courts have statutory authority under 28 U.S.C. § 2254,
as amended by the Antiterrorism and Effective Death Penalty
Act of 1996, to issue habeas corpus relief for persons in
state custody. See Harrington v. Richter, 562 U.S.
86, 97-98 (2011). A federal court may grant relief from a
state court decision only where a petitioner demonstrates
that the trial court's resolution of his claims was
“‘contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States' or
‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Hooks v. Workman, 689 F.3d
1148, 1163 (2012) (quoting 28 U.S.C. § 2254(d)(1), (2)).
Petition, James asserts that his right to due process was
violated because Agent Caroland obtained a warrant for his
arrest on perjured information. Doc. 1-1 at
15-17. To establish probable cause for
Petitioner's arrest, Agent Phil Caroland signed an
Affidavit for Arrest Warrant that referred to a narrative
attached to the Criminal Complaint. Id. at 21. The
Agents with the Region V Drug Task Force have been
investigation (sic) the narcotics dealings of Sergio James
aka “Milk.” Agents had received information that
Sergio James was selling cocaine (crack) from his residence
at 817 Edwards Street in Clovis, New Mexico. On [May 11,
2011, ] Agents had a confidential informant who was equipped
with an audio and video recorder device go to the
defendant's residence. The defendant was recorded
selling the informant one hundred dollars (100) worth of
crack cocaine. The confidential informant and your
affiant identified the subject who sold the cocaine as
Id. at 22 (emphasis added). The Complaint was also
signed by Agent Caroland and approved by a magistrate judge,
having found probable cause. Id.
asserts that Agent Caroland lied to the magistrate judge in
this narrative because “no audio or video recording
depicted [him] selling any drugs to [the confidential
informant (“CI”)].” Id. at 16.
Further, he argues, “[Agent] Caroland was not present
in the residence at the time in question and could not
identify Petitioner as ‘the subject who sold the
cocaine.'” Id. Accordingly, he argues that
probable cause did not exist for his arrest. Id. at
15-17. Petitioner re-asserts these arguments in his
Objections. Doc. 24.
asserts in his Objections that while the New Mexico Court of
Appeals addressed similar issues, “this exact claim had
not been raised or ruled upon in any previous
proceedings.” Id. at 4. Petitioner is correct
that the New Mexico Court of Appeals did not directly address
the issue of the perjured arrest warrant. However, the Court
of Appeals “addressed numerous issues relate[d] to the
video in this matter” (Doc. 12-3 at 85), and
found that the recording and agent testimony, together with
reasonable inferences, did establish that Petitioner sold
cocaine to the CI (id. at 44-45). The state district
court then addressed the issue of the perjured arrest warrant
on collateral attack, and incorporated the Court of
Appeals' Memorandum Opinion to hold that “due to
the Court of Appeals['] thorough review of issues related
to the video in this matter, the use of the video cannot be
collaterally attacked through a post-conviction Petition for
Writ of Habeas Corpus.” Id. at 84-85
the Court of Appeals found that agents instructed the CI to
purchase crack cocaine from Petitioner at 17 Edward Street in
Clovis and equipped him with a recording device. Id.
at 44. The audio recording contained a conversation between
the CI and an agent about the $100 agents gave the CI for the
controlled buy. Id. at 41. The video recording
showed the CI arriving at 817 Edwards Street. Id. at
44. It also showed that Petitioner was present at 817 Edwards
Street when the CI arrived. Id. At 41, 44. Finally,
the court found that the video recording showed the CI
leaving the house, returning to the agents, and giving the
agents a substance that was later determined to be cocaine.
Id. These factual findings are presumed to be
correct because Petitioner has not rebutted that presumption
by clear and convincing evidence. See 28 U.S.C.
§ 2254(e). Based on these facts, the recording did show
Petitioner selling cocaine to the CI, as Agent Caroland
stated in the Complaint, even if it did not show the actual
hand-to-hand buy. And while Agent Caroland was not present at
the transaction, the information he received from the CI
would allow him to identify Petitioner as the seller, as he
further stated in the Complaint. Therefore, the court's
decision to deny relief on the issue of a perjured arrest
warrant was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254(d)(2).
Objections, Petitioner also requests an evidentiary hearing.
The Fourth Amendment requires a hearing to determine if the
probable cause stated in a warrant is truthful “where
the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause . . . .”
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
There is “a presumption of validity with respect to the
affidavit supporting the search warrant, ” id.
at 171, which a defendant can overcome by presenting
“evidence either that the deputies knew that the
information in the search-warrant affidavit was false or that
the [deputies] in fact entertained serious doubts as to ...