United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
H. RITTER UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Petitioner Robert Neil
Coronado's (“Mr. Coronado” or
“Petitioner”) Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
[Doc. 1] (“Petition”), which he filed pro se on
October 4, 2017. United States District Judge Martha Vazquez
referred the case to United States Magistrate Judge Jerry H.
Ritter pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3)
on January 23, 2018. [Doc. 5]. The Court, sua sponte, ordered
Plaintiff/Respondent United States of America (“the
Government”) to answer the Motion on October 12, 2017
[Doc. 3]. The Government complied with the Court's Order
and responded in opposition on January 12, 2018 [Doc. 7]
(“Response”). Petitioner filed his Reply on
January 23, 2018 [Doc. 11] (“Reply”).
carefully considered the parties' submissions and the
relevant law, the undersigned recommends that
Petitioner's claim for relief be DISMISSED with
prejudice. Petitioner's pending Motion to Re-Examine
Issues [Doc. 14] and Motion to Amend [Doc. 19], both
apparently seeking to amend the petition, do not
substantively alter or add any argument or claim to the
Petition, and should therefore be DENIED. Further, given the
dispositive nature of the undersigned's recommendation to
dismiss, Petitioner's pending “Motion Requesting
Order for Evidence” [Doc. 22] should also be DENIED AS
Factual Background and Procedural History
factual background of this case is set forth in the
Memorandum Opinion as well as the State's Answer Brief in
the state court appeal, issued on June 18, 2015. [Doc. 7-2 at
6-16; 77-95]. A summary of the relevant facts is set forth
herein for clarity purposes.
March 11, 2009, Robert Neil Coronado (“Mr.
Coronado”) met a young man in Pancake Alley in Las
Cruces, New Mexico, whom he hired to perform day labor. [Doc.
7-2 at 8]. Later that day, the young man asked Mr. Coronado
for “headache medicine, ” and soon after
receiving it, felt “not right.” [Id. at
9]. After the young man finished working, Mr. Coronado drove
him to a convenience store and gave him a fountain soda,
which made him feel worse. [Id. at 78]. The young
man's memory became blurry, but he remembers Mr. Coronado
driving him to the desert and forcing him to engage in oral
sex. [Id. at 78-79]. His next memory is waking up
naked in Mr. Coronado's bed next to a sleeping, also
naked, Mr. Coronado. [Id.]. In the early morning
hours, the young man grabbed his clothes and ran out of the
house, and was later found walking down the road, sobbing, by
a Las Cruces Police Department sergeant, whom he told that he
“thought somebody tried to rape him.”
[Id.]. Upon being transported to the hospital, it
was discovered that the young man suffered fresh scratches
and abrasions on his torso, back, buttocks, and base of his
penis, as well as anal tears caused by trauma; and his
genital area had been shaved. [Id. at 12-13, 79]. A
toxicology report revealed that the young man had 0.02
milligrams per liter of hydrocodone in his blood, which
qualifies as a high therapeutic level. [Id. at 15].
A prescription bottle of hydrocodone, empty alcohol bottles,
razors, and a pair of boxer shorts identified as the young
man's were found in Mr. Coronado's house and vehicle.
[Id.]. Swabs taken during the young man's SANE
exam revealed Mr. Coronado's saliva on the base of his
penis and Mr. Coronado's semen in his anus.
public defender, Joseph Shattuck, was originally appointed to
represent Mr. Coronado upon his grand jury indictment for
kidnapping, criminal sexual penetration in the second degree,
and criminal sexual contact in the fourth degree. State of
New Mexico v. Robert Neil Coronado, D-307-CR-200900327 Case
History; see 28 U.S.C. § 2254(g). Later, on June 23,
2009, Mr. Shattuck withdrew and Jose Luis Arrieta substituted
his appearance on behalf of Mr. Coronado. Id. On
September 7, 2010, Nathan Gonzales was substituted as counsel
because of Mr. Arrieta's suspension from practicing law.
[Id.; Doc. 7 at 3-4]. Mr. Gonzales acted as
inventorying attorney for Mr. Arrieta, and prepared Mr.
Coronado's case on his behalf. State of New Mexico v.
Robert Neil Coronado, D-307-CR-200900327, Motion to Withdraw
and Substitution of Counsel and Order Approving Withdrawal,
filed September 3, 2010. One year later, on September 21,
2011, Mr. Coronado wrote Mr. Gonzales a letter in which he
stated concerns that he did not understand Mr. Gonzales'
role after Mr. Arrieta was disbarred, and that Mr. Gonzales
has not done what he expected. [Doc. 7-4 at 11]. Mr. Gonzales
responded to Mr. Coronado on September 22, 2011, stating that
he had spoken on the phone with Mr. Coronado for an hour and
a half, reviewing every detail of his September 21, 2011
letter, and that Mr. Coronado stated he understood he has a
choice of attorney in his case and that he still wished Mr.
Gonzales to continue to be his attorney. [Id. at
September 26, 2011, Mr. Gonzales filed an Emergency Motion to
Withdraw as Counsel on behalf of Mr. Coronado, in which he
argued that “[a]t 2:40 p.m., Monday, September 26,
2011, defendant Robert Coronado expressed to Mr. Gonzales
that he did not wish Mr. Gonzales to represent him any longer
and thereby terminated Mr. Gonzales's services.”
[Id. at 6-7]. Judge Driggers denied Mr.
Coronado's Emergency Motion on September 28, 2011.
[Id. at 8].
September 30, 2011, Mr. Coronado was convicted of kidnapping,
NMSA 1978, § 30-4-1, criminal sexual penetration in the
second degree, NMSA 1978, § 30-9-11(E)(3), and criminal
sexual contact in the fourth degree, NMSA 1978, §
30-9-12(C). [Doc. 7-1 at 1]. On July 2, 2012, Judge Driggers
sentenced Mr. Coronado to eighteen years for kidnapping and
nine years for criminal sexual penetration in the second
degree, to be served consecutively, and 18 months for
criminal sexual contact in the fourth degree, to be served
concurrently with his sentence imposed for criminal sexual
penetration. [Id. at 2]. Mr. Coronado's sentence
totaled twenty-seven years imprisonment, followed by parole
for at least five years up to life. [Id.]. On July
17, 2012, Mr. Coronado filed a notice of appeal.
[Id. at 9]. Mr. Gonzales filed a docketing statement
on behalf of Mr. Coronado, in which he raised the following
issues on appeal: (1) Mr. Coronado's original attorney,
Mr. Arrieta, provided ineffective assistance of counsel by
failing to file a speedy trial demand, and having limited
communications with Mr. Coronado; (2) The State offered
insufficient evidence to prove the elements of the crimes
charged and the Court erred in finding there was
“efficiency in evidence;” and (3) “The
Court erred not allowing counsel to withdraw prior to the
trial when counsel cited conflict of interest.”
[Id. at 14].
18, 2015, the New Mexico Court of Appeals affirmed
Defendant's convictions; however, it noted that its
conclusion would not impair Mr. Coronado's right to make
an ineffective assistance of counsel claim in a habeas
petition. [Doc. 7-2 at 94-95]. On July 20, 2015, Mr. Coronado
filed a Petition for Writ of Certiorari to the New Mexico
Court of Appeals. [Id. at 96-109]. The Supreme Court
denied the writ of certiorari on August 25, 2015. [Doc. 7-3
later, on September 2, 2016, Mr. Coronado filed a Petition
for Writ of Habeas Corpus pro se in the state court.
[Doc. 7-3 at 6-48]. The Law Offices of the Public Defender
made an initial review of Mr. Coronado's habeas petition
in accordance with Rule 5-802(G)(1), and concluded that the
petition was “not a proceeding that a reasonable person
with adequate means would be willing to bring at a
person's own expense.” [Doc. 7-3 at 49] (citing
NMSA 1978, § 31-16-3(B)(3) (“A needy person
entitled to representation by an attorney…is entitled
to be…represented in any other postconviction
proceeding that the attorney or the needy person considers
appropriate unless the court in which the proceeding is
brought determines that it is not a proceeding that a
reasonable person with adequate means would be willing to
bring at his own expense.”)). The Law Offices of the
Public Defender reasoned that the issues raised in Mr.
Coronado's petition had been dispositively addressed in
his prior appeal, but deferred to the court to as to whether
the petition should be returned for “additional factual
information differentiating his claims from those previously
decided before the Court of Appeals.” [Doc. 7-3 at
49-52]. On January 30, 2017, Mr. Coronado filed a pro
se amendment to his state habeas petition, in which he
argued that the state court denied him counsel of his choice
by denying his motion to withdraw counsel, and that he
received ineffective assistance of counsel from inventorying
counsel, Nathan Gonzales, in several respects, including lack
of preparation and investigation prior to trial and
counsel's allegedly poor presentation at trial. [Doc. 7-3
at 59-90]. On March 1, 2017, The Law Offices of the Public
Defender submitted a Notice of 5-802(G)(1) Subsequent Review,
in which the Public Defender again found that the issues
raised in Mr. Coronado's amended petition for writ of
habeas corpus were dispositively decided in the Court of
Appeals, and his petition was not one “a reasonable
person with adequate means would be willing to bring at a
person's own expense, ” but deferred to the Court
as to the interpretation of Petitioner's claim,
particularly the decision for his counsel not to hire a
toxicology expert. [Id. at 91-94]. The state court
subsequently dismissed Mr. Coronado's habeas petition.
[Id. at 95-96].
Coronado then filed with the New Mexico Supreme Court another
Petition for Writ of Certiorari to the Third District Court
of New Mexico on May 19, 2017, based on these same issues.
[Doc. 7-4 at 1-93]. The Supreme Court summarily denied the
writ of certiorari on September 5, 2017. [Id. at
Mr. Coronado filed the instant Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody on October 4, 2017. [Doc. 1]. Mr. Coronado brings
forth his exhausted state court claims of: (1) denial of the
right to counsel of choice; and (2) ineffective assistance of
counsel. [Id. at 5, 19]. Mr. Coronado also admits to
bringing grounds that were not raised in his appeal or state
habeas petition. [See Id. at 24]. Respondents
Amanda Stinson and Hector Balderas filed their answer to Mr.
Coronado's Petition after being granted an extension to
their deadline, [Doc. 6], on January 12, 2018. [Doc. 7]. Mr.
Coronado then filed a Reply on January 23, 2018. [Doc. 11].
On June 7, 2018, Mr. Coronado also filed a “Motion to
re-examine issues, ” which requests the Court to review
issues that “were not addressed because they were not
part of the trial record or appeal.” [Doc. 14 at 1].
Mr. Coronado repeats the claims he made in his appeal and
state habeas petition under the guise of an ineffective
assistance of counsel claim that evidence of
“hickeys” on his neck were not produced at trial,
that he was not allowed to be present during a video-taped
deposition, and his trial counsel did not call a toxicology
expert. [Doc. 14 at 1-3]. Respondents filed a Response to the
motion, arguing that the issues raised are identical to those
presented in his habeas petition. [Doc. 15 at 2]. Mr.
Coronado argues that the issues have never been ruled on by
state or federal court, and the issues rise to the level of
“structural error and would have changed the outcome of
the trial in favor of petitioner.” [Doc. 16 at 1].
Petitioner filed a motion to amend his Petition on August 8,
2018. [Doc. 19].Petitioner also filed a “Motion
Requesting Order for Evidence” [Doc. 22], which the
Court will construe as a “motion to compel”
requesting the Court to compel Respondents to produce
transcripts from the hearing on the motion to withdraw
counsel dated September 26 and 27, 2011, and his sentencing
hearing dated June 29 and 30, 2012, as well as pictures and
statements from the police investigation and SANE exam.
[Id. at 1]. However, the Court has not directed the
parties to engage in discovery, Petitioner's request does
not comply with the rules, and the requests that Petitioner
makes are not relevant to his habeas petition. See
Rules Governing Section 2254 Cases, 28 foll. § 2254,
Rule 6 (2004).
September 11, 2018, Petitioner filed an Amended Petition
under 28 U.S.C. § 2254 in which he repeats his claims
that the state court erred in denying his motion to withdraw
counsel, his trial counsel had a “conflict of interest,
” and re-asserts a variety of complaints related to his
ineffective assistance of counsel claim. [Doc. 23]. The Court
did not grant leave for Petitioner to file the amended
petition, and the undersigned finds that because
Petitioner's proposed amendment merely restates his
original claims, which are recommended for dismissal,
amendment would be futile, and leave should not be granted.
See Fed. R. Civ. P. 15(a)(2); Ketchum v.
Cruz, 961 F.2d 916, 920 (10th Cir. 1992). Because