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Coronado v. Stinson

United States District Court, D. New Mexico

October 30, 2018

ROBERT NEIL CORONADO, Petitioner,
v.
AMANDA STINSON, Warden, and HECTOR BALDERAS, Attorney General for the State of New Mexico, Respondents.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE.

         THIS 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”).

         Having 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 MOOT.

         I. Factual Background and Procedural History

         The 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.

         On 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. [Id.].

         A 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 12].

         On 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].

         On 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].

         On June 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 at 1-2].

         A year 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].

         Mr. 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 94].

         Thereafter, 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.[1] [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].[2]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).

         On 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 ...


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