United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Proposed Findings and Recommended Disposition addresses
Petitioner Rigel's habeas corpus petition filed pursuant
to 28 U.S.C. § 2254 and considers whether the State of
New Mexico violated Petitioner Rigel's rights under the
United States' Constitution when it denied his motion to
withdraw his guilty plea to armed robbery and rejected his
argument that he was factually innocent of that offense. The
state court decisions rejecting Rigel's arguments were
neither contrary to law nor based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. As a result, I recommend
denying Rigel's petition.
Travis Rigel, proceeding pro se, is in custody
pursuant to a Judgment, Partially Suspended Sentence and
Commitment, filed January 14, 2014, in the Second
Judicial District Court for the State of New Mexico in
consolidated Cause Nos. CR 2009-01961 and CR 2011-03826. Doc.
16-1, Ex. A. Rigel filed the 28 U.S.C. § 2254 petition
that is currently before the Court on February 5,
2016. Doc. 1. Although Rigel initially asserted
several claims, the Court determined that he failed to
exhaust State remedies with regard to all but one of those
claims. Doc. 18. His exhausted claim is that the district
court erroneously denied his motion to withdraw his guilty
plea. Id. Specifically, Rigel argues that he had
insufficient time to consider whether to plead guilty to the
armed robbery charge and that he is factually innocent of
armed robbery (Doc.1 at 5, 7, 8, 18, 20). Rigel has cleared
the path to pursuing these arguments through a § 2254
Petition by voluntarily dismissing his unexhausted claims.
Doc. 19. Before analyzing the merits of these arguments, I
set forth the relevant background.
Underlying District Court Proceedings in CR 2009-01961
and CR 2011-03826
April 20, 2009, a state grand jury indicted Petitioner in CR
2009-01961 on fourteen counts in connection with the February
28, 2009, death of Felix Zamora. See Ex. BB. On
August 18, 2011 -- while Petitioner was in custody awaiting
trial in CR 2009-01961 -- a grand jury indicted Petitioner in
CR 2011-03826 with one count of possession of a deadly weapon
by a prisoner. See Ex. CC.
next year, on June 29, 2012, Petitioner appeared before the
district court for a change-of-plea hearing. Ex. B. At that
time, Robert Tangora, Petitioner's third attorney,
represented Petitioner in both cases. Id. The
district court consolidated both cases for purposes of the
plea hearing. Ex. C. At the start of the plea hearing, the
State of New Mexico informed the district court that it was
filing a criminal information in open court charging
Petitioner with a new count in CR 2009-01961 for armed
robbery (Count 15) in connection with Mr. Zamora's death.
Ex. D; Ex. Y at 2. Petitioner waived a preliminary hearing
and presentation to the grand jury on the armed robbery
charge. Ex. E. The district court arraigned Petitioner on the
armed robbery charge and then proceeded with the plea
hearing. Ex. Y at 2-4.
entered into a Plea and Disposition Agreement, which the
district court approved. Ex. B. In CR 2009-01961. Petitioner
pled guilty to second degree murder (Count 1), first degree
kidnapping (Count 3), and second degree armed robbery (Count
Id. In CR 2011-03826, Petitioner pled guilty to
possession of a deadly weapon by a prisoner. Id.
Petitioner's plea agreement included his signed statement
that he “reviewed this matter and agree[s] that the
plea and disposition are appropriate and are in the best
interest of justice.” Id. The plea agreement
also included defense counsel's signed statement that:
I have discussed this case with my client in detail and have
advised the defendant of defendant's constitutional
rights and all possible defenses. I believe that the plea and
disposition set forth herein are appropriate under the facts
of this case. I agree with the plea outlined in this
agreement and its terms and conditions.
Id. During the plea hearing, Petitioner stated he
had “very thoroughly” discussed with Mr. Tangora
the constitutional rights he was giving up by pleading guilty
and described himself as “very satisfied” with
Mr. Tangora's legal advice and legal representation. Ex.
Y at 7-8.
sentencing hearing was scheduled for September 7, 2012. Ex.
Z. The hearing was cut short after an individual brought
illegal narcotics to the courtroom and allegedly attempted to
pass the narcotics to Petitioner before the judge took the
bench for the sentencing. Id.; see also Ex.
G. The court continued Petitioner's sentencing to a later
date and permitted Mr. Tangora to withdraw as defense
counsel. Id. On December 19, 2012, Mark Earnest
entered his appearance on behalf of Petitioner. Ex. K.
State moved to void Petitioner's sentencing agreement
based on the September 7, 2012, courtroom incident. Ex. G;
Ex. Y at 4. Petitioner moved to withdraw his guilty plea,
arguing in relevant part that: (1) if Mr. Tangora had pursued
a motion to suppress filed by Petitioner's previous
attorney,  he would not have pled guilty
“because he had a good chance of prevailing on such a
motion”; (2) he was not apprised of the nature of the
armed robbery charge because it was filed on the day of the
plea hearing; and (3) he was actually innocent of armed
robbery. Ex. L. After a hearing, the district court denied
Petitioner's motion to withdraw his guilty plea as well
as the State's motion to void the sentencing agreement.
Docs. N, O.
January 14, 2014, the district court entered judgment and
sentenced Petitioner to a total consecutive sentence of
imprisonment of 51 years, of which 10 years were suspended,
for an actual sentence of imprisonment of 41 years to be
followed by 2 years on parole and 5 years of supervised
probation. Ex. A. The court gave Petitioner credit for 1, 577
days pre-sentence confinement as well as any post-sentence
confinement prior to his transfer to the New Mexico
Corrections Department. Id.
Appeal to New Mexico Court of Appeals and New Mexico
February 12, 2014, Petitioner filed a direct appeal to the
New Mexico Court of Appeals. Doc. Q. The sole issue
Petitioner raised on appeal was that the district court
erroneously denied his motion to withdraw his guilty plea.
Doc. R. Petitioner argued that the district court should have
granted the motion to withdraw because “he was not
apprised of the nature of at least one of the crimes to which
he was pleading guilty, specifically the armed robbery charge
and he was, in fact, factually innocent of that
charge.” Id. at 9.
the New Mexico Court of Appeals proposed summary affirmance,
Petitioner filed a memorandum in opposition. Doc. S, Doc. T.
In addition to the above arguments, Petitioner asserted that
his trial counsel should have pursued the motion to suppress.
Doc. T at 1-2. Petitioner acknowledged that Mr. Tangora
testified at the hearing on the withdrawal motion “that
he had advised [Petitioner] about what the offense of armed
robbery entailed and that they had discussed such a plea
prior to the date of the guilty plea hearing.”
Id. Mr. Tangora also testified that “he did
not pursue prior counsel's motion to suppress because he
was focused on getting [Petitioner] the benefit of a plea
deal.” Id. at 2. In his briefing, Petitioner
requested a “limited remand to permit an evidentiary
hearing as to whether he experienced ineffective assistance
of counsel.” Id. at 2-3.
December 16, 2014, the New Mexico Court of Appeals affirmed
Petitioner's convictions, holding that the district court
did not abuse its discretion in denying Petitioner's
motion to withdraw his guilty plea. Doc. U. The court noted
that the district court held a hearing on the withdrawal
motion “at which evidence was introduced establishing
that [Petitioner] had been properly advised by counsel prior
to the plea hearing.” Id. at 2. The court
determined that Petitioner failed to offer “any reason
to believe that such consultation [with his trial counsel]
was insufficient to allow [Petitioner] to ...