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Lukens v. Franco

Supreme Court of New Mexico

November 29, 2018

DAVID R. LUKENS, JR., Petitioner,
GERMAN FRANCO, Warden, Respondent.

          ORIGINAL PROCEEDING ON CERTIORARI Cristina Jaramillo, District Judge

          Law Offices of Jennifer J. Wernersbach, P.C. Jennifer J. Wernersbach Albuquerque, NM for Petitioner

          Hector H. Balderas, Attorney General Laurie Pollard Blevins, Assistant Attorney General Santa Fe, NM for Respondent



         {¶1} 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.

         {¶2} 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.

         {3} 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.

         {4} 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 16-Preamble-Scope NMRA.

         {5} 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).

         {6} 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 appellant:

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).

         {7} 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."

         I. BACKGROUND

         {8} 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.

         {¶9} 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.

         {10} 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 begin.

         {¶11} 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 Petitioner.

         {¶12} 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 habeas corpus.

         {¶13} 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 appeal."


         {¶14} 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 now. ...

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