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Parvilus v. Smith

United States District Court, D. New Mexico

January 22, 2019

GERARD PARVILUS, Plaintiff/Petitioner,
v.
RAYMOND SMITH, et al., Defendants/Respondents.

          ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on Chief Magistrate Judge Carmen E. Garza's Proposed Findings and Recommended Disposition (the “PFRD”), (Doc. 17), filed December 12, 2018, and Petitioner Gerard Parvilus' Objections to the Magistrate's Proposed Findings and Recommended Disposition (the “Objections”), (Doc. 19), filed December 28, 2018. In the PFRD, the Chief Magistrate Judge recommended that Mr. Parvilus' Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), (Doc. 1), be denied. (Doc. 17 at 26).

         The parties were informed that objections to the Chief Magistrate Judge's opinion were due within fourteen days of service of the PFRD. Id. Mr. Parvilus timely objected to the PFRD on December 28, 2018. (Doc. 19). Respondent neither objected to the PFRD nor responded to Mr. Parvilus' Objections, and the fourteen-day deadline has now passed. See Rule 12 of the Rules Governing Section 2254 Proceedings in the United States District Courts; Fed.R.Civ.P. 72(B)(2). Following a de novo review of the Petition, PFRD, and Objections, the Court will overrule the Objections, adopt the PFRD, deny the Petition, and dismiss this case with prejudice.

         I. Background

         After learning of his wife's infidelity and illegitimate pregnancy, Mr. Parvilus left his overseas duty station with the United States Air Force and returned to Alamogordo, New Mexico, where his wife and child resided. (Doc. 13-1 at 61-64). Shortly after his return to New Mexico, Mr. Parvilus entered his wife's apartment through an unlocked window. Id. at 64-65. Once inside, Mr. Parvilus encountered Pierre Smith, his wife's companion. Id. Upon encountering Mr. Smith, Mr. Parvilus duct-taped him to a chair, questioned him about his relationship with Mrs. Parvilus, and threatened him with a gun. Id.

         After releasing Mr. Smith unharmed, the two men traveled to Mr. Parvilus' hotel room at the Hampton Inn. Id. at 65. Once inside the room, Mr. Parvilus stabbed Mr. Smith to death. Id. at 65-68. The parties dispute both the voluntariness of Mr. Smith's actions in accompanying Mr. Parvilus to the Hampton Inn and the circumstances surrounding his death. Id.

         After killing Mr. Smith and leaving his body on the hotel room floor, Mr. Parvilus returned to his wife's apartment to await her arrival. Id. Upon her return, Mr. Parvilus began threatening to kill himself and questioned Mrs. Parvilus about the details of her affair with Mr. Smith. Id. at 67-68. Mr. and Mrs. Parvilus disagree about whether Mr. Parvilus then intentionally or accidentally struck Mrs. Parvilus with his gun and whether Mrs. Parvilus proceeded to voluntarily or unwillingly accompany her husband to the Hampton Inn. Id. at 68.

         Nonetheless, when Mr. and Mrs. Parvilus arrived at the hotel room, Mrs. Parvilus saw Mr. Smith's body lying on the floor. Id. At the urging of Mrs. Parvilus, Mr. Parvilus drove to the New Mexico state police station and confessed to killing Mr. Smith. Id. at 68-69.

         On November 3, 2009, a jury found Mr. Parvilus guilty of: (1) second degree murder; (2) two counts of first degree kidnapping; (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).

         Following trial, Mr. Parvilus' counsel moved for a judgment notwithstanding the verdict (“JNOV”), seeking to dismiss the aggravated burglary conviction. Id. at 2. The state trial court granted defense counsel's motion, explaining that N.M.S.A. § 40-3-3, a New Mexico domestic-affairs statute, made burglary involving a husband and wife a legal impossibility. Id. In response, the State of New Mexico (the “State”) appealed the state trial court's decision, arguing the domestic-affairs statute did not afford a husband immunity from a conviction of burglary against a spouse. Id. at 12. Mr. Parvilus also 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, dismissing both Mr. Parvilus' and the State's appeals. (Doc. 13-2 at 73-87). Following the court of appeals' decision, the State and Mr. Parvilus each petitioned for a writ of certiorari to the Supreme Court of the State of New Mexico (the “state supreme court”), requesting review of the lower courts' decisions. (Doc. 13-3 at 1, 42-43). The state supreme court denied Mr. Parvilus' petition for certiorari, thereby affirming his convictions. (Doc. 13-3 at 42). The state supreme court granted the State's petition for certiorari, finding that the domestic-affairs statute does not protect a spouse against a conviction of aggravated burglary when the crime involves a married couple. (Doc. 13-2 at 86-87). Therefore, the state supreme court reversed the state court of appeals opinion and remanded the case for Mr. Parvilus to be resentenced. Id. On remand, Mr. Parvilus was resentenced to 43.5 years in the custody of the New Mexico Department of Corrections. (Doc. 13-1 at 4-6).

         On May 16, 2016, Mr. Parvilus filed a petition for a writ of habeas corpus in the state trial court, asserting: (1) the jury should have been instructed on sufficient provocation, to reduce his homicide charge to voluntary manslaughter; (2) his trial counsel was ineffective for failing to argue for an explanatory instruction on sufficient provocation; (3) he did not restrain his victims beyond that needed to facilitate the commission of aggravated assault; (4) he experienced an unfair trial because of an error in the jury instructions regarding his kidnapping charges; and (5) his trial counsel was ineffective for failing to argue that the home he allegedly burglarized was his own. (Doc. 13-6 at 16-76).

         The state trial court summarily dismissed the habeas petition and Mr. Parvilus petitioned the state supreme court for a writ of certiorari. Id. at 1-2, 79. In his petition to the state supreme court, Mr. Parvilus presented all of his state trial court habeas arguments, with the exception of his argument that he was not afforded a fair trial because of an error in the jury instructions. 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). Ten days later, Mr. Parvilus filed the instant Petition. (Doc. 1 at 1).

         Mr. Parvilus now raises seven grounds for relief before this Court: (1) there is insufficient evidence to support his kidnapping convictions, in violation of his Fifth, Sixth, and Fourteenth Amendment rights; (2) the jury was presented with incomplete instructions, in violation of his right to due process; (3) he was deprived of a full and fair trial when jurors witnessed him in the custody of the government outside the courthouse; (4) he suffered ineffective assistance of counsel because trial counsel failed to argue for an explanatory instruction on sufficient provocation; (5) he is “actually and factually innocent” of the aggravated burglary charge; (6) he suffered ineffective assistance of counsel because trial counsel failed to argue that the home he allegedly burglarized was his shared spousal home; and (7) the jury was improperly instructed regarding the kidnapping charges, in violation of his Sixth and Fourteenth Amendment rights. (Doc. 1); (Doc. 14). Respondent contends that grounds one, five, and seven have not been exhausted. (Doc. 13 at 1-12). Nevertheless, Respondent urges the Court to evaluate the claims and deny the Petition for lack of merit. Id.

         In the PFRD, the Chief Magistrate Judge considered Mr. Parvilus' claims, explaining that under 28 U.S.C. § 2254 Mr. Parvilus must show that the state courts' decisions were contrary to, or an unreasonable application of, clearly established federal law or that there were unreasonable determinations of fact. See 28 U.S.C. § 2254(d). The Chief Magistrate Judge found that Mr. Parvilus' kidnapping convictions were supported by sufficient evidence, (Doc. 17 at 15-19), any error in his jury instructions did not result in a deprivation of due process, id. at 19-22, and his trial counsel's conduct did not amount to ineffective assistance of counsel, id. at 23-25. Further, the Chief Magistrate Judge concluded that Mr. Parvilus was not unduly ...


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