United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on the Honorable Jerry H.
Ritter's Proposed Findings and Recommended Disposition,
filed on October 30, 2018 [Doc. 25] (“PFRD), which
recommends dismissing Petitioner Robert Neil Coronado's
Petition under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus [Doc. 1]; and denying his Motion to Re-Examine Issues
[Doc. 14] and Motion to Amend [Doc. 19], as well as denying
Petitioner's Motion Requesting Order for Evidence [Doc.
22] as moot. The proposed findings notify Petitioner of his
ability to file objections and that failure to do so waives
appellate review. On November 8, 2018, Petitioner filed his
Objections to the PFRD. [Doc. 26]. Petitioner also filed a
Motion to Compel Trial Court for Records and Request for
Hearing on December 31, 2018 [Doc. 28], and an Amendment to
Petitioner's Objections on January 4, 2019 [Doc. 29].
Court summarily denies Petitioner's Motion to Compel
Trial Court for Records and Request for Hearing [Doc. 28] as
improperly filed pursuant to D.N.M. LR-CIV 7.1(a) and
Fed.R.Civ.P. 37(a)(1). The Court will not consider
Petitioner's Amendment to Petitioner's Objections, as
it was filed after the fourteen-day period provided under 28
U.S.C. § 636(b)(1), notice of which provision was given
in the PFRD. [Doc. 25 at 16]. Having conducted a de
novo review of the record, the Court overrules
Petitioner's objections and will adopt the Magistrate
Judge's recommendations and dismiss his Petition with
prejudice and deny the remaining pending motions, [Doc. 14]
and [Doc. 19].
of the magistrate judge's ruling is required by the
district court when a party timely files written objections
to that ruling.” Hutchinson v. Pfeil, 105 F.3d
562, 566 (10th Cir. 1997). Specifically, “[d]e novo
review is required when a party files timely written
objections to the magistrate judge's
recommendation.” In re Griego, 64 F.3d 580,
583-84 (10th Cir. 1995) (citation omitted). “De novo
review requires the district court to consider relevant
evidence of record and not merely review the magistrate
judge's recommendation.” Id.
“However, neither 28 U.S.C. § 636(b)(1) nor
Fed.R.Civ.P. 72(b) requires the district court to make any
specific findings; the district court must merely conduct a
de novo review of the record.” Garcia v. City of
Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
factual background of this case is set forth in the PFRD.
[Doc. 25 at 2-7]. However, for clarity purposes, the Court
will provide a summary of the relevant facts.
case stems from Mr. Coronado's September 30, 2011
convictions in New Mexico state court for kidnapping, NMSA
1978, § 30-4-1, criminal sexual penetration in the
second degree, NMSA 1978, § 30-9-11(E)(3), and criminal
sexual contact in the fourth degree, NMSA 1978, §
30-9-12(C). [Doc. 7-1 at 1]. He filed this petition based on
claims of ineffective assistance of counsel based on his
contention that the inventorying attorney who replaced his
attorney of -3-choice made a series of alleged mistakes at
trial, and that his inventorying attorney was operating with
a conflict of interest.
to filing this petition, Mr. Coronado filed a state court
appeal based on the following issues: (1) Mr. Coronado's
original attorney, Mr. Arrieta, provided ineffective
assistance of counsel by failing to file a speedy trial
demand, and having limited communications with Mr. Coronado;
(2) the State offered insufficient evidence to prove the
elements of the crimes charged and the Court erred in finding
there was “efficiency in evidence;” and (3)
“The Court erred not allowing counsel to withdraw prior
to the trial when counsel cited conflict of interest.”
[Id. at 14]. The New Mexico Court of Appeals
affirmed Defendant's convictions; however, it noted that
its conclusion would not impair Mr. Coronado's right to
make an ineffective assistance of counsel claim in a habeas
petition. [Doc. 7-2 at 94-95]. The Supreme Court denied Mr.
Coronado's writ of certiorari on August 25, 2015. [Doc.
7-3 at 1-2].
Coronado then filed a Petition for Writ of Habeas Corpus
pro se in the state court. [Doc. 7-3 at 6-48]. On
March 1, 2017, The Law Offices of the Public Defender
submitted a Notice of 5-802(G)(1) Subsequent Review, in which
the Public Defender found that the issues raised in Mr.
Coronado's amended petition for writ of habeas corpus
were dispositively decided in the Court of Appeals, and his
petition was not one “a reasonable person with adequate
means would be willing to bring at a person's own
expense, ” but deferred to the Court as to the
interpretation of Petitioner's claim, particularly the
decision for his counsel not to hire a toxicology expert.
[Id. at 91-94]. The state court subsequently
dismissed Mr. Coronado's habeas petition. [Id.
at 95-96]. The Supreme Court of New Mexico subsequently
summarily denied the writ of certiorari on September 5, 2017.
[Id. at 94].
Coronado filed a writ of habeas corpus under 28 U.S.C. §
2254 on his exhausted state court claims of: (1) denial of
the right to counsel of choice; and (2) ineffective
assistance of counsel. [Doc. 1 at 5, 19]. Respondents filed
their answer to Mr. Coronado's Petition on January 12,
2018. [Doc. 7]. Mr. Coronado filed a Reply on January 23,
2018. [Doc. 11]. On June 7, 2018, Mr. Coronado also filed a
“Motion to re-examine issues, ” which requests
the Court to review issues that “were not addressed
because they were not part of the trial record or
appeal.” [Doc.14 at 1]. Respondents filed a Response to
the motion, arguing that the issues raised are identical to
those presented in his habeas petition. [Doc. 15 at 2].
Petitioner filed a motion to amend his Petition on August 8,
2018. [Doc. 19]. He also filed a “Motion Requesting
Order for Evidence” [Doc. 22] and an Amended Petition
under 28 U.S.C. § 2254. [Doc. 23].
October 30, 2018, Magistrate Judge Jerry H. Ritter filed his
Proposed Findings and Recommended Disposition. [Doc. 25]. The
Magistrate Judge determined, as an initial matter, that only
Petitioner's ineffective assistance of counsel claims
were properly brought before the Court, since those were the
only claims that were exhausted in state court. [Id.
at 10-11]. He then recommended dismissing Petitioner's
ineffective assistance of counsel claims under 28 U.S.C.
§ 2254, because the trial court's dismissal of
Petitioner's claims was not contrary to clearly
established law. 28 U.S.C. § 2254(d); Bell v.
Cone, 535 U.S. 685, 694 (2002).
objected to the Magistrate Judge's findings, discussing
his initial appointment of counsel, a point that was not
raised in the state court proceedings or in his federal
petition, and rephrasing the facts and issues he had raised
previously. [Doc. 26]. Namely, Petitioner remains concerned
that he did not receive certain documents in the record that
would have helped him present his case at trial.
[Id.at 2-4]. He argues that he is entitled to an
evidentiary hearing. [Id. at 5]. He repeats his
claims that he was unable to present certain evidence at
trial, and that his attorney was operating with a conflict of
interest. [Id. at 6-7].
Petitioner filed objections to the PFRD, the Court has
reviewed the PFRD, Petitioner's objections, and the
evidence of record de novo. As an initial matter,
Petitioner requests an evidentiary hearing, but his claim
does not rely on: “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;
or… a factual predicate that could not have been
previously discovered through the exercise of due
diligence.” 28 U.S.C § 2254(e)(2)(A). The facts
relied on in ...