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Parvilus v. Smith

United States District Court, D. New Mexico

December 12, 2018

GERARD PARVILUS, Petitioner,
v.
RAYMOND SMITH, Warden, Lea County Correctional Facility, et al. Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Petitioner Gerard Parvilus' Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (the “Petition”), (Doc. 1), filed February 27, 2017, Respondents' Answer to Pro Se Petitioner Gerard B. Parvilus' Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) [Doc. 1] (the “Response”), (Doc. 13), filed August 1, 2017, and Petitioner's Response to Respondents' Answer to Pro Se Petitioner Gerard B. Parvilus' Petition for Writ of Habeas Corpus (the “Reply”), (Doc. 14), filed August 11, 2017. This matter was reassigned to Chief United States Magistrate Judge Carmen E. Garza on October 29, 2018. (Doc. 15). Thereafter, on November 27, 2018, Chief United States District Judge William P. Johnson referred this case to the undersigned to perform legal analysis and recommend an ultimate disposition. (Doc. 16).

         After considering the parties' filings, the record, and the relevant law, the Court RECOMMENDS that the Petition, (Doc. 1), be DENIED, and this case be DISMISSED WITH PREJUDICE.

         I. Factual Background

         In early 2007, Mr. Parvilus and his wife, Jahaira Parvilus, began experiencing marital problems and discussed divorce. (Doc. 13-1 at 61). Both Mr. and Mrs. Parvilus were members of the United States Air Force and served the United States in their official capacities overseas. Id. at 60-61. On February 17, 2008, Mrs. Parvilus called Mr. Parvilus, who was then stationed in South Korea, and informed him of her affair with another Air Force servicemember, Pierre Smith. Id. at 63. During the phone call, Mr. Parvilus also learned of his wife's pregnancy by Mr. Smith and her subsequent abortion. Id.

         On February 20, 2008, Mr. Parvilus left his duty station in South Korea and returned to Alamogordo, New Mexico, where his wife and Mr. Smith resided. Id. Two days later, Mr. Parvilus entered his wife's apartment through an unlocked window and encountered Mr. Smith using the toilet. Id. at 64. Mr. Parvilus then duct-taped Mr. Smith, asked him a series of questions about his relationship with Mrs. Parvilus, and threatened him with a gun. Id. at 64-65. Eventually, Mr. Parvilus released Mr. Smith unharmed. Id. at 65.

         The two men then went together to Mr. Parvilus' hotel room at the Hampton Inn. Id. The parties dispute whether Mr. Smith voluntarily accompanied Mr. Parvilus to the hotel and whether Mr. Parvilus' subsequent actions were in self-defense or otherwise mitigated. Id. It is undisputed, however, that Mr. Parvilus stabbed Mr. Smith to death and left his body on the hotel room floor. Id. Mr. Parvilus then returned to his wife's apartment to confront her when she arrived home from work. Id. at 65-68. After Mrs. Parvilus arrived, Mr. Parvilus threatened to kill himself, hit her in the forehead with the butt of his gun (it is unclear whether he did so accidentally or intentionally), and questioned her about her affair with Mr. Smith. Id. at 67-68.

         The couple's testimony differs regarding whether Mrs. Parvilus then voluntarily accompanied her husband to the Hampton Inn, or whether Mr. Parvilus forced her to accompany him at gunpoint. Id. at 68. Undisputedly, when Mr. and Mrs. Parvilus arrived at the hotel room, Mrs. Parvilus saw Mr. Smith's body “lying on the floor between the beds with a gaping hole in his chest.” Id. After several threats of suicide and phone calls to relatives, Mr. Parvilus drove to the New Mexico state police station and surrendered to law enforcement. Id. at 68-69.

         II. Procedural Posture

         On November 3, 2009, in the Twelfth Judicial District Court, Otero County (the “state trial court”), a twelve member jury returned a verdict finding Mr. Parvilus guilty of the following crimes: (1) murder in the second degree; (2) two counts of kidnapping in the first degree; (3) aggravated burglary with a deadly weapon; (4) aggravated assault with a deadly weapon on a household member; and (5) interference with communications. (Doc. 13-1 at 1). The jury found Mr. Parvilus not guilty of a second count of aggravated burglary with a deadly weapon. Id. at 1-2.

         Following trial, defense counsel moved for a judgment notwithstanding the verdict (“JNOV”) to dismiss the jury's conviction for the first count of aggravated burglary with a deadly weapon. Id. at 2. The state trial court granted defense counsel's motion, finding that a charge of aggravated burglary involving a husband and wife was legally impossible, because the husband's entry into his wife's home could not be considered “unauthorized, ” as required by statute. Id. at 15. In support of this conclusion, the state trial court relied on a 1907 New Mexico domestic-affairs statute, N.M.S.A. § 40-3-3, which provides that neither husband nor wife can be excluded from the other's dwelling. (Doc. 13 at 3). The state trial court reasoned that because the domestic-affairs statute made entry into his wife's dwelling “authorized, ” Mr. Parvilus could not be convicted of burglary in a home he was legally permitted to enter. (Doc. 13-2 at 63-64).

         With the aggravated burglary conviction dismissed, Mr. Parvilus was ultimately sentenced for: (1) murder in the second degree; (2) two counts of kidnapping in the first degree; (3) aggravated assault with a deadly weapon on a household member; and (4) interference with communications. (Doc. 13-1 at 2). The state trial court sentenced Mr. Parvilus to 34.5 years with the New Mexico Department of Corrections. Id.

         The State of New Mexico (the “State”) filed an appeal, arguing the state trial court's JNOV for aggravated burglary was erroneous and limited protection to future victims of domestic violence. Id. at 12. Mr. Parvilus cross-appealed, challenging all of his convictions on various grounds. Id. at 8. The New Mexico Court of Appeals (the “court of appeals”) affirmed the state trial court's opinion, agreeing that the domestic-affairs statute made aggravated burglary of Mrs. Parvilus' home a legal impossibility. (Doc. 13-2 at 73-74). In addition, the court of appeals affirmed Mr. Parvilus' other convictions, concluding there were no reversible-errors in the state trial court's decision below. Id. at 74-87.

         Both the State and Mr. Parvilus petitioned for a writ of certiorari to the New Mexico Supreme Court (the “state supreme court”), challenging the court of appeals' decision. (Doc. 13-3 at 1, 42-43). The state supreme court granted the State's petition for certiorari, agreeing that § 40-3-3 of the domestic-affairs statute does not provide immunity for burglary of a spouse's residence. Id. at 86-87, 98. The state supreme court therefore reversed the opinions below and remanded the case to the state trial court to resentence Mr. Parvilus with the reinstated aggravated burglary conviction. Id. In addition, the state supreme court denied Mr. Parvilus' petition for certiorari, affirming his convictions. (Doc. 13-3 at 42). On remand, Mr. Parvilus was resentenced to 43.5 years with the New Mexico Department of Corrections. (Doc. 13-1 at 4-6).

         Mr. Parvilus then filed a petition for a writ of habeas corpus in the state trial court, arguing that his sentence was contrary to law. (Doc. 13-6 at 16). Specifically, Mr. Parvilus presented five arguments: (1) his wife's affair was sufficient provocation to reduce the homicide charge to voluntary manslaughter, and the jury therefore should have been instructed on sufficient provocation; (2) his counsel's failure to argue for an explanatory instruction on sufficient provocation constituted ineffective assistance of counsel in violation of his Sixth Amendment right; (3) his kidnapping convictions were invalid because the restraint of his victims was not longer than necessary to facilitate the commission of another crime, aggravated assault; (4) a typographical error in the jury instructions for the kidnapping charges led to juror confusion and resulted in an unfair trial; and (5) his counsel's failure to argue that the home he burglarized was his own constituted ineffective assistance of counsel. Id. at 16-76.

         The state trial court summarily denied Mr. Parvilus' habeas petition and he promptly petitioned the state supreme court for a writ of certiorari. Id. at 1-2, 79. In his petition for a writ, Mr. Parvilus included all of his state trial court habeas arguments, except for the contention that a typographical error in the jury instructions for the kidnapping charges resulted in an unfair trial. See (Doc. 13-6 at 3-13). On February 8, 2017, the state supreme court denied his petition for a writ of certiorari. (Doc. 13-6 at 79). Mr. Parvilus was represented by counsel throughout his state court proceedings, including both the state trial court petition for habeas corpus and the petition for a writ of certiorari to the state supreme court. (Doc. 13 at 5).

         Following the state supreme court's denial of his petition for a writ of certiorari, Mr. Parvilus filed this 28 U.S.C. § 2254 petition (“Petition” or “§ 2254 petition”). (Doc. 1 at 1). Mr. Parvilus now appears before this Court pro se. Id.

         III. Mr. Parvilus' Section 2254 Claims

         Mr. Parvilus raises the following seven grounds for relief in his § 2254 petition: (1) his kidnapping convictions are invalid because the restraint of his victims was insufficient to satisfy the statutory language; (2) the state trial court failed to provide the jury with the proper “use instruction” preceding the special verdict questions; (3) he was unduly prejudiced when the jurors saw him arrive at the courthouse in the government's custody; (4) trial counsel was ineffective for failing to argue for an explanatory jury instruction on sufficient provocation; (5) trial counsel was ineffective for failing to argue the home he allegedly burglarized was his own; (6) trial counsel was ineffective for failing to argue the residence he allegedly burglarized was his “spousal home;” and (7) a typographical error in the jury instructions for the kidnapping charges led to juror confusion and resulted in an unfair trial. (Doc. 1); (Doc. 14).

         In response, Respondents contend Mr. Parvilus has not exhausted all of his claims, specifically grounds one, five, and seven. (Doc. 13 at 1-12). As such, Respondents argue that Mr. Parvilus' petition is “mixed” for purposes of federal habeas review. Id. at 12. Nevertheless, Respondents urge the Court to ignore the exhaustion requirement in this case and deny the petition for lack of merit, an option recognized by the United States Supreme Court. See Id. (citing Granberry v. Greer, 481 U.S. 129, 134-135 (1987)).

         As a pro se litigant, Mr. Parvilus' pleadings are to be “liberally construed.” Sines v. Wilner, 609 F.3d 1070, 1074 (10th Cir. 2010) (citation omitted). Liberal construction requires courts to make some allowance for a pro se litigant's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Garrett v. Selby, Connor, Maddux, & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation omitted). Indeed, pro se litigants are held to “less stringent standards” than those expected of lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a pro se litigant's pleadings are to be judged by the same legal standards that apply to all litigants, and he must still abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). In addition, a court cannot “assume the role of advocate” for the litigant, nor is it required to fashion his arguments for him. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted); United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citations omitted).

         IV. Exhaustion of ...


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