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Tafoya v. Martinez

United States District Court, D. New Mexico

November 26, 2018

ANDRES JOAQUIN TAFOYA, Petitioner,
v.
RICK MARTINEZ, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HON. CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Andres Joaquin Tafoya's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the “Petition”), (Doc. 1), filed March 27, 2017, and Respondent's Supplemental Answer to Andres Joaquin Tafoya's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Doc. 1] (the “Response”), (Doc. 29), filed May 3, 2018. Mr. Tafoya did not file a reply within the deadlines set by the Court for him to do so. Also before the Court is Respondent's Motion for Judgment on the Pleadings, Pursuant to Federal Rule of Civil Procedure 12(c), (Doc. 40), filed October 4, 2018, and Mr. Tafoya's response, (Doc. 43), filed October 22, 2018. United States District Judge Robert C. Brack referred this case to Chief United States Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 5).

         After considering the parties' filings, the record, and the relevant law, the Court RECOMMENDS that Respondent's Motion for Judgment on the Pleadings, (Doc. 40), be GRANTED; the Petition, (Doc. 1), be DENIED; and this case be DISMISSED WITH PREJUDICE.

         I. Background

         On January 27, 2005, Mr. Tafoya was charged by grand jury in the Second Judicial District Court, County of Bernalillo (“State district court” or “trial court”), with four counts of first-degree criminal sexual penetration of a minor (“CSPM”) (Counts 1, 2, 3, and 4); two counts of third-degree criminal sexual contact of a minor (“CSCM”) (Counts 5 and 6); and bribery of a witness (Count 7). (Doc. 29-1 at 5-7). The CSPM and CSCM counts were further narrowed as follows: two counts of vaginal CSPM, two counts of anal CSPM, one count of CSCM for touching the victim's intimate parts, and one count of CSCM for causing the victim to touch Mr. Tafoya's intimate parts. Id. at 5-6. The victim was Mr. Tafoya's niece. (Doc. 29 at 2). The charging period in the indictment was between January 24, 2002 and December 31, 2004, (Doc. 29-1 at 5-7), which was later narrowed to between September 30, 2002 and December 26, 2004, (id. at 9-11, 14-18).

         On March 9, 2006, Mr. Tafoya filed with the State district court a Motion to Dismiss for Failure to Give Adequate Notice of Charges, in which he argued the broad charging period, even after being narrowed, and the lack of specificity in the charges themselves, amounted to a violation of his right to due process. Id. at 19-30. In May 2006, the State district court issued a detailed order denying the motion. Id. at 33-42. The State district court first clarified that the factual bases for the charges against Mr. Tafoya stemmed from four specific incidents referred to as “the Hooter's incident, ” “the rash incident, ” “the mouth covering incident, ” and “the last time or Christmastime incident.” Id. at 35-36. Two other specific incidents identified by the victim-the “first time incident” and the “camping incident”-were excluded by the State district court because the first time incident was outside of the charging period and the camping incident occurred outside of the State district court's jurisdiction. Id. at 41.

         Next, the State district court weighed the reasonableness of the State's efforts to narrow the charging period against the potential prejudice to Mr. Tafoya based on the lengthy timeframe. Id. at 36. In doing so, the State district court considered the following: (1) the crimes were alleged to have occurred while the victim was between the ages of five and seven, and multiple interviews with her demonstrated she did not have the capacity to provide more particular dates or time periods; (2) the alleged incidents occurred on a continuous basis and were not a few isolated events; (3) although the extent to which Mr. Tafoya had frequent and unsupervised access to the victim was disputed, it was not disputed that he was often present in the same residence as her during the daytime and overnight; (4) the charged offenses did not occur in the presence of other witnesses and were not of the sort that were likely to be discovered immediately; and (5) according to the victim's statements, she was abused at least seventeen times. Id. at 36-37. The State district court further considered Mr. Tafoya's claim that the long charging period and lack of specificity in the charges precluded him from presenting an alibi defense. Id. at 38. The court noted that Mr. Tafoya's evidence of an alibi-such as bank records, cell phone records, employment records, and vacation records-would require extremely narrow time frames, such as specific dates, in order to be effective. Id.

         The State district court explained that it is required to “balance the imperative to provide reasonable notice of charges against the Defendant and the need to allow the State reasonable leeway in prosecuting crimes committed against children of tender years.” Id. The court found that “the State cannot reasonably have provided greater specificity of the times of the alleged offenses, ” and the “prejudice claimed by the Defendant is not different from most other defendants who are charged with similar offenses against young children because in almost all such cases the young child does not have the capacity to specify particular dates and times of the alleged sexual abuse.” Id. The court further explained that Mr. Tafoya “is protected by the requirement that the jury must find him guilty beyond a reasonable doubt and the jury may be affected by the witness's inability to specify the exact day and time of the alleged crime and the subsequent inability of the defendant to establish an alibi defense.” Id. at 40. The State district court concluded that the “sexual acts alleged were described by the child with adequate specificity to place [Mr. Tafoya] on notice of the criminal acts which he is charged with, ” and denied Mr. Tafoya's Motion to Dismiss for Failure to Give Adequate Notice of Charges. Id. at 41.

         On May 24, 2007, a jury found Mr. Tafoya guilty of Counts 1-6. Id. at 1-4.[1] Mr. Tafoya was sentenced to 18 years each for Counts 1, 2, 3, and 4, and 3 years each for Counts 5 and 6. Id. at 2. The sentences for Counts 1, 2, 3, and 4 were to run concurrently to each other and consecutively to each of the sentences for Counts 5 and 6, for a total term of imprisonment of 24 years, to be followed by a 2-year term of parole. Id. at 2-3. Mr. Tafoya filed a direct appeal of his convictions with the New Mexico Court of Appeals (“Court of Appeals”), raising the following claims: (1) the charging scheme provided inadequate notice as to the precise charges against him and the covered period of time; (2) the trial court improperly instructed the jury; (3) the trial court erroneously admitted hearsay testimony from Sexual Assault Nurse Examiner (“SANE”) Rosella Vialpondo; and (4) the prosecutor engaged in multiple instances of misconduct. (Doc. 29-2 at 30-58).

         The Court of Appeals entered an order on September 11, 2009, affirming in part and reversing in part Mr. Tafoya's convictions. (Doc. 29-3 at 29-77); State v. Tafoya, 2010-NMCA-010, 227 P.3d 92. The court found no error in the State's charging scheme, stating that it “agree[d] that the district court struck a proper balance in weighing the reasonableness of the State's extensive efforts against the potential prejudice to Defendant.” Tafoya, 2010-NMCA-010, ¶¶ 18. However, the Court of Appeals found that the two undifferentiated counts of vaginal CSPM and two undifferentiated counts of anal CSPM “ultimately violated Defendant's right to due process” because the evidence at trial did not link each CSPM charge to one of the four specific incidents set forth in the trial court's May 2006 order. Tafoya, 2010-NMCA-010, ¶ 24. The Court of Appeals found no due process violations in the remaining counts of vaginal and anal CSPM “based on the evidence presented at trial establishing a pattern of CSPM conduct during the charging period for which [Mr. Tafoya] had notice and an opportunity to defend.” Id. The court further found that the trial court did not err in instructing the jury or in admitting hearsay testimony under the exception permitting statements made for medical purposes, and that the alleged prosecutorial misconduct did not deprive Mr. Tafoya of a fair trial. Id. at ¶¶ 31-60.

         Mr. Tafoya filed a motion for rehearing with the Court of Appeals, (Doc. 29-3 at 79-111), which was denied, (id. at 112). Mr. Tafoya then filed a petition for a writ of certiorari with the New Mexico Supreme Court, (Doc. 29-4 at 1-23), which was denied on December 23, 2009, (Doc. 29-5 at 1). The Court of Appeals issued a mandate, pursuant to which the State district court dismissed Counts 2 and 4. Id. at 2-4. The State district court then resentenced Mr. Tafoya to the same 24 years imprisonment and 2 years parole as he was originally sentenced. Id. at 5-8.

         On July 27, 2012, Mr. Tafoya filed a petition for a writ of habeas corpus in the State district court, raising the following claims: (1) his right to due process was violated because the charging scheme lacked specificity in the dates and nature of the charges, and because he was convicted on the basis of a “course of conduct” theory; (2) the trial court erroneously instructed the jury as to the psychological evaluation of the victim, the definition of “penetration, ” and the requirement for a unanimous verdict; (3) the trial court improperly admitted Ms. Vialpondo's testimony; and (4) the prosecutor engaged in misconduct by introducing inadmissible evidence of uncharged acts, denigrating and disparaging defense counsel, misstating her role as a defender of the victim, commenting on Mr. Tafoya's exercise of his constitutional rights, and posing a guilt-assuming hypothetical question to Mr. Tafoya when he testified. Id. at 9-51. The State district court initially denied the petition, (id. at 77), and Mr. Tafoya filed a motion to reconsider, (Doc. 29-6 at 1-14). The State district court granted the motion to reconsider and held an evidentiary hearing on the issues of whether Ms. Vialpondo's testimony was properly admitted and whether the prosecutor engaged in misconduct by allegedly admitting this testimony for the sole purpose of establishing the victim's story. Id. at 15-55. Ultimately, the State district court denied the habeas petition, finding that Mr. Tafoya was barred from relitigating claims already ruled on by the Court of Appeals, there were no errors relating to the admission of the SANE testimony, and the prosecutorial misconduct claims should have been raised on direct appeal. Id. at 90-99.

         Mr. Tafoya then filed a petition for a writ of certiorari with the New Mexico Supreme Court challenging the denial of his state habeas corpus petition, (Doc. 29-7 at 1-58), which was denied on May 9, 2016, (id. at 100). On March 27, 2017, Mr. Tafoya filed the instant Petition. (Doc. 1). Mr. Tafoya was represented by attorney Billy R. Blackburn for his state criminal trial, appeal, and habeas proceedings, and is currently represented by Mr. Blackburn for purposes of this federal habeas proceeding.

         In his Petition, Mr. Tafoya brings the following claims: (1) he was provided inadequate notice of the charges against him; (2) the jury instructions improperly expanded the acts for which he could be found criminally liable; (3) the jury instructions improperly allowed for a non-unanimous verdict; (4) the trial court provided a factually erroneous jury instruction regarding an evaluation of the victim's mental health; and (5) the prosecutor engaged in misconduct by eliciting improper testimony from Ms. Vialpondo, asking the victim about one of the excluded alleged incidents, questioning the cost of Mr. Tafoya's defense, implying defense counsel was hiding evidence, asserting the victim's rights were superior to Mr. Tafoya's, asking Mr. Tafoya during cross-examination to assume he sexually abused the victim, and misstating her role as a defender of the victim. (Doc. 1 at 5-24). Mr. Tafoya argues these errors violated his Constitutional rights under the 5th, 6th, and 14th Amendments, including violation of his rights to due process and to effective assistance of counsel. Id.

         On June 30, 2017, Respondent filed his response to the Petition, arguing that Mr. Tafoya's ineffective assistance of counsel claims had not been exhausted in the state courts. (Doc. 10 at 10-12). Because the Petition is “mixed, ” Respondent asked the Court to either dismiss the Petition without prejudice to allow Mr. Tafoya to exhaust those claims or allow Mr. Tafoya to elect to dismiss his unexhausted claims and proceed on the merits of his remaining claims. Id. at 12. After requesting eight extensions of time to file a reply to Respondent's response, on February 22, 2018, Mr. Tafoya filed a Notice of Election to Delete Ineffective Assistance of Counsel Claim from Petition of Writ of Habeas Corpus, (Doc. 27), in which he agreed to dismiss his unexhausted ineffective assistance of counsel claims set forth in paragraphs 47 and 48 of the Petition. The Court thereafter entered an Order for Supplemental Briefing, (Doc. 28), setting deadlines for supplemental briefing to address the merits of Mr. Tafoya's remaining claims.

         In Respondent's supplemental Response to the Petition, he argues that Mr. Tafoya is not entitled to relief on the merits on any of his remaining claims. First, Respondent contends Claims 2, 3, and 4 raise nothing more than non-cognizable state-law errors. (Doc. 29 at 6-8). In the alternative, Respondent argues the state court decisions on these claims were not contrary to, or an unreasonable application of, clearly established federal law, and were not based on an unreasonable determination of the facts. Id. at 7-8. Finally, Respondent contends the state court decisions regarding Claims 1 and 5 are not contrary to clearly established federal law and are not based on an unreasonable determination of the facts. Id. at 8-12. Therefore, Respondent argues Mr. Tafoya is not entitled to relief under 28 U.S.C. § 2254 and asks the Court to deny Mr. Tafoya's habeas petition with prejudice.

         Mr. Tafoya requested five extensions of time to file a reply addressing Respondent's supplemental Response. (Docs. 30, 32, 34, 36, and 38). After granting four of those requests, and twice stating that no further extensions would be granted, the Court denied Mr. Tafoya's fifth motion for an extension of time finding that Mr. Tafoya did not set forth good cause for granting another continuance. (Doc. 39). On October 4, 2018, Respondent filed a Motion for Judgment on the Pleadings, (Doc. 40), stating the Petition is ready for ruling based on the reasons set forth in Respondent's supplemental Response. Mr. Tafoya filed a response to that motion on October 22, 2018. (Doc. 43).

         II. Analysis

         A. Governing Law and Standards of Review

         Under 28 U.S.C. § 2254, a person in state custody may petition a federal court for relief on the ground that his detention violates the United States Constitution or laws. § 2254(a). When a state court adjudicates a claim on the merits, § 2254 prohibits federal courts from granting habeas relief unless the state court judgment: (1) resulted in a decision contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented. §§ 2254(d)(1)-(2). Federal courts must presume factual findings made by the state courts are correct, and a petitioner must present clear and convincing evidence to rebut that presumption. § 2254(e)(1).

         A state court decision is “contrary to” clearly established law if it: (1) “applies a rule that contradicts the governing law set forth” in Supreme Court cases, or; (2) if it “confronts a set of facts that are materially indistinguishable” from a Supreme Court decision and “nevertheless arrives at a result different from” the Supreme Court decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court decision constitutes an “unreasonable application” of federal law when a state “unreasonably applies” Supreme Court precedent “to the facts of a prisoner's case.” Id. at 409. The state court decision must be more than incorrect or erroneous. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and quotation omitted). Rather, the application “must be ‘objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409). This imposes a highly deferential standard of review, and state court decisions must be given the benefit of the doubt. Id.

         B. Motion for Judgment on the Pleadings

         In his Motion for Judgment on the Pleadings, (Doc. 40), Respondent states the case is ready for ruling, and asks the Court to deny the Petition for the reasons stated in Respondent's supplemental Response. In response to this motion, Mr. Tafoya states that in his Petition he “set forth all available grounds and the basis for each and every claim and alleged specific facts to support each and every claim, ” and argues that his failure to file a timely reply to the Petition does not provide grounds for denying ...


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