United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE
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).
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.
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.
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.
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.
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
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.
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).
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.
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.
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).
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.
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
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.
Mr. Parvilus' Section 2254 Claims
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).
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)).
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).
Exhaustion of ...