United States District Court, D. New Mexico
ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
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
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.
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.
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.
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.
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.
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
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.
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).
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).
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
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.
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 ...