DAVID R. LUKENS, JR., Petitioner,
GERMAN FRANCO, Warden, Respondent.
ORIGINAL PROCEEDING ON CERTIORARI Cristina Jaramillo,
Offices of Jennifer J. Wernersbach, P.C. Jennifer J.
Wernersbach Albuquerque, NM for Petitioner
H. Balderas, Attorney General Laurie Pollard Blevins,
Assistant Attorney General Santa Fe, NM for Respondent
L. CLINGMAN, JUSTICE
In this appeal of the district court's denial of habeas
corpus, Petitioner David Lukens, Jr. claims ineffective
assistance of appellate counsel in his direct appeal and
requests a new appeal or reversal of his conviction. We
consider (1) whether prejudice due to deficient performance
of Petitioner's attorney should be presumed or whether
Petitioner must prove that actual prejudice occurred on
direct appeal and, (2) if there was prejudice, whether the
remedy should be a new appeal. Although the performance of
Petitioner's appellate counsel on direct appeal
(Appellate Counsel) was clearly deficient in certain
instances, we hold that prejudice may not be presumed because
the performance of Appellate Counsel did not deprive
Petitioner of his constitutional right to a direct appeal of
his conviction. We further hold that Petitioner has failed to
establish actual prejudice in his direct appeal. Because
Petitioner did not establish prejudice, we do not reach the
question of remedy. We affirm the district court's denial
of the petition for a writ of habeas corpus.
We pause to address deficient briefing that is too often
submitted to this court and to other courts throughout New
Mexico. We observe a degree of irony in this case because the
very briefs in this habeas appeal alleging deficient
performance were neither examples of good structure nor
models of clarity. Although we have determined that
Petitioner did not suffer a constitutional deprivation due to
ineffective assistance of counsel, we are concerned about
performance issues in general and about the performance of
Appellate Counsel in this case in particular. No appellate
court or district court should ever hesitate to return
briefing or order rebriefing with a short deadline when
briefing is unclear or lacks citations or is otherwise
unprofessional. "[A]n order to rebrief provides a
reasonable means for imposing a minimal level of quality
control on the appellate briefing process." Douglas E.
Cressler, Mandated Rebriefing: A Judicial Mechanism for
Enforcing Quality Control in Criminal Appeals,
44-JUL Res Gestae 20, 20.
The New Mexico Rules of Appellate Procedure authorize our
appellate courts to impose appropriate sanctions.
For any failure to comply with these rules or any order of
the court, the appellate court may, on motion by appellant or
appellee or on its own initiative, take such action as it
deems appropriate in addition to that set out [herein],
including but not limited to citation of counsel or a party
for contempt, refusal to consider the offending party's
contentions, assessment of fines, costs or attorney fees or,
in extreme cases, dismissal or affirmance.
Rule 12-312(D) NMRA.
The New Mexico "Rules of Professional Conduct . . .
presuppose a larger legal context shaping the lawyer's
role. That context includes court rules and statutes relating
to matters of licensure [and] laws defining specific
obligations of lawyers" where "[f]ailure to comply
with an obligation or prohibition imposed by a rule is a
basis for invoking the disciplinary process." Rule
This Court has stated,
We remind counsel that we are not required to do their
research, and that this Court will not review issues raised
in appellate briefs that are unsupported by cited authority.
When a criminal conviction is being challenged, counsel
should properly present this court with the issues,
arguments, and proper authority. Mere reference in a
conclusory statement will not suffice and is in violation of
our rules of appellate procedure.
State v. Clifford, 1994-NMSC-048, ¶ 19, 117
N.M. 508, 873 P.2d 254 (citations omitted).
We are not alone in our concern. A law review article
authored by the Administrator of the Indiana Supreme Court
discusses that court's experience with deficient briefing
in criminal appeals. Cressler, supra, at 20
& n.a1. The article describes the briefing in a case,
similar to the case before us, where the Indiana Supreme
Court required appointment of new counsel for a criminal
Throughout the argument section of the appellant's brief,
factual assertions were made without reference to the record.
Contentions of legal error were made without cogent analysis
and without sufficient explanation of how the alleged errors
were preserved for appellate review. The Court also found the
arguments of counsel to be unreasonably difficult to follow.
Grammatical errors littered the brief. The Court ultimately
concluded that, taken as a whole, the brief was inadequate.
Id. at 21 & ns.19-20 (citing Perez v.
State, Cause No. 12S00-9910-CR-633, appeal
to the Indiana Supreme Court pending as of the
publication of this July 2000 law review)
(reporting that in April 2000 the Perez Court struck
the appellate brief and remanded the cause for appointment of
new counsel and rebriefing); see also Perez v.
State, 748 N.E.2d 853 (Ind. 2001) (reviewing the
convictions on direct appeal).
Courts are not required to try and make sense of work product
so flawed that its meaning cannot be discerned. We remind our
courts and the New Mexico bar that the New Mexico Rules of
Appellate Procedure and Rules of Professional Conduct empower
courts to sanction lawyers, including by return of briefs and
reassignment of counsel for "failure to comply with an
obligation or prohibition imposed by a rule."
Petitioner is the father of a child who was born prematurely
and injured during his first months of life (Child). On
December 5, 2005, a hospital alerted law enforcement when
x-rays revealed multiple fractures throughout Child's
body. A grand jury indicted Petitioner for intentional child
abuse resulting in great bodily harm in violation of NMSA
1978, Section 30-6-1 (2005). After a two-week trial, the jury
convicted Petitioner of first-degree negligent child abuse by
endangerment, resulting in great bodily harm. The district
court sentenced Petitioner to eighteen years in prison but
reduced his sentence to twelve years upon finding mitigating
circumstances. Petitioner filed a notice of appeal.
Appellate Counsel Trace Rabern filed a docketing statement
with the New Mexico Court of Appeals but failed to ensure
timely filing of the record proper with the Court of Appeals.
The Court of Appeals allowed the late filing of the record
proper and eventually affirmed the conviction. State v.
Lukens, A-1-CA-30819, mem. op. ¶ 22 (July 1, 2013)
(nonprecedential). Throughout its opinion, the Court of
Appeals noted that Appellate Counsel failed to develop
arguments, failed to cite the record, failed to cite
authorities, and did not provide a basis for relief.
Id. ¶¶ 6, 9, 10, 14, 17, 19-21. Due to
these failures, the Court of Appeals did not directly address
some issues that Appellate Counsel raised. See id.
¶¶ 6, 9, 14, 17, 19-21.
After losing on direct appeal, Appellate Counsel filed an
untimely petition for writ of certiorari in this Court and
moved for consideration of the petition as timely. We denied
the motion. Appellate Counsel failed to communicate with
Petitioner regarding the status of his appeal, and
consequently Petitioner did not learn that he was to be
remanded to prison until the day before his sentence was to
Petitioner then filed a pro se petition for a writ of habeas
corpus under Rule 5- 802 NMRA (2009). The district court
summarily dismissed the petition. After consultation between
the district attorney's office and the public
defender's office, the district court reinstated the
petition and appointed new counsel (Habeas Counsel) for
Habeas Counsel filed an amended petition for writ of habeas
corpus on behalf of Petitioner, primarily alleging
ineffective assistance of appellate counsel. Habeas Counsel
informed the district court that Appellate Counsel had been
indefinitely suspended from the practice of law. The district
court denied the amended petition, finding that Petitioner
"failed to demonstrate adequate prejudice to demonstrate
the results would have been different but for the errors of
his appellate counsel." Petitioner now seeks this
Court's review of the district court's denial of
We granted certiorari under Rule 12-501 NMRA (2014) and
ordered the parties to brief Petitioner's ineffective
assistance of counsel issues, particularly (1) "whether
the standard for ineffective assistance of counsel always
requires prejudice" and (2) "if there was
ineffective assistance of counsel, whether the case should be
remanded to the New Mexico Court of Appeals for a new
Petitioner alleges that the assistance of Appellate Counsel
was so deficient that prejudice should be presumed and that
we should grant him a new appeal. Alternatively, Petitioner
argues that he suffered actual prejudice and that had it not
been for such deficient appellate representation, his
conviction would have been reversed and should be reversed