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Gallegos v. Smith

United States District Court, D. New Mexico

March 5, 2019

ALEXANDER GALLEGOS, Petitioner,
v.
R.C. SMITH, Warden, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court[1] on Petitioner Alexander Gallegos's pro se “Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254” (“Petition”) [ECF No. 1], and Respondent's Answer to the Petition (“Answer”) [ECF No. 12]. Having reviewed the briefing and being fully advised, this Court recommends the Petition be DENIED for the reasons that follow.

         A. PROCEDURAL HISTORY

         On September 4, 2015, a Bernalillo County state court jury convicted Petitioner of first-degree trafficking of cocaine by distribution (Count I) and second-degree conspiracy to commit trafficking of cocaine by distribution (Count II). The jury acquitted Petitioner of trafficking of cocaine by possession with intent to distribute (Count III) and conspiracy to commit trafficking of cocaine by possession with intent to distribute (Count IV). Enhancing Petitioner's sentence to account for his habitual offender status, the state district court sentenced Petitioner to twenty-nine years of imprisonment but suspended seven of them, for an actual incarceration period of twenty-two years, followed by a term of supervised probation.

         On direct appeal, [2] Petitioner challenged the sufficiency of the evidence for both counts of conviction. He also argued that his right under the Confrontation Clause was violated, specifically through the introduction of a recorded statement of a declarant who did not testify at trial. The New Mexico Court of Appeals (“NMCOA”) thereafter proposed summary affirmance. In response, Petitioner's appellate counsel's memorandum in opposition (1) conceded the Confrontation Clause issue, (2) renewed the sufficiency of the evidence argument, and (3) moved to amend the docketing statement to add an additional claim that the combination of the two convictions violated Petitioner's double jeopardy right.

         In its August 29, 2016, formal memorandum opinion, the NMCOA affirmed Petitioner's convictions, denied his motion to amend the appellate docketing statement, and determined that he abandoned the sufficiency of evidence challenge as to Count II. Petitioner did not seek review with the Supreme Court of the NMCOA's opinion. On April 18, 2017, however, Petitioner filed a pro se state habeas corpus petition pursuant to N.M.R.A. 5-802. On June 28, 2017, the state district court summarily dismissed the petition. This time, Petitioner sought review by the New Mexico Supreme Court, but that court denied review on August 4, 2017. On November 28, 2017, Petitioner then sought relief in this Court by filing the instant Petition.

         B. FACTUAL BACKGROUND

         Pursuant to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Court presumes the factual findings of the NMCOA are correct. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). The NMCOA summarized the evidence at trial as follows:

Defendant communicated to a woman named Destiny that he would sell a pound of cocaine to undercover police detectives; Destiny served as an intermediary between the undercover detectives and Defendant and his brother in arranging the details of the planned sale of narcotics; Defendant communicated to Destiny that his brother wanted the transaction to happen at his house; Defendant accompanied Destiny to the agreed-upon location to meet the undercover detectives; Defendant and other passengers in a brown Cadillac led the undercover detectives to his brother's house, while Destiny rode with the detectives; Defendant went inside his brother's house; a woman named Vanessa-one of the other passengers in the Cadillac-came outside and asked the detectives and Destiny if they were coming inside, to which the detectives responded that they were not; Vanessa went back into the house, and then exited the house with both Defendant and his brother; Defendant began looking up and down the street, which in the detectives' training and experience constituted “counter surveillance” for police activity or possible robbery activity; Defendant and his brother approached the driver's side of the detectives' vehicle and asked them to come inside the house to do the deal; a detective replied that he was uncomfortable going into the house with all of his cash; Defendant's brother replied that he did not like to do big deals in vehicles; the detectives persuaded Defendant's brother to get in the car; Defendant's brother then pulled out a large baggy, and-wearing latex gloves-began cutting a brick of cocaine while telling the detectives about the quality of the cocaine; and Defendant remained present, but outside the car, while the transaction occurred.

State v. Gallegos, No. 35, 531, 2016 WL 4942837, at *2 (N.M. Ct. App. Aug. 29, 2016).[3]

         C. CLAIMS PRESENTED

         Petitioner advances eight grounds for relief:

(1) Judicial misconduct amounting to due process violation: that the state district court abused its discretion and committed a due process violation when it dismissed his Rule 5-802 petition without holding an evidentiary hearing. Pet. 7-11.
(2) Insufficient evidence of guilt amounting to due process violation: that the state court convicted Petitioner for “crimes not committed” because he “was basically present during a drug deal” rather than actively participating in the transaction. Id. at 11-13.
(3) Ineffective assistance of trial counsel: that Petitioner's trial counsel was ineffective for failing to mount a proper defense, to conduct any investigation, or to interview witnesses. Id. at 13-16.
(4) Ineffective assistance of appellate counsel: that Petitioner's appellate counsel were ineffective for (a) conceding the Confrontation Clause issue on direct appeal, (b) failing to assert trial counsel's ineffectiveness, (c) failing to include in the docketing statement certain legal arguments specifically demanded by Petitioner, and (d) failing to seek certiorari review of the New Mexico Court of Appeals' memorandum opinion. Id. at 23-26.
(5) Fourth Amendment violation: that law enforcement unlawfully arrested Petitioner for his “mere presence” at the scene of a drug transaction. Id. at 16-20.
(6) Confrontation Clause violation: that admission of a declarant's recorded statement without her testimony at trial violated his Sixth Amendment confrontation rights. Id. at 20-23.
(7) Erroneous jury instruction: that multiple constitutional violations occurred “when jury instructions submitted were modified, confusion and misconstrued; [sic] leaving [the] jury in question of determination to what level of doubt may consider a verdict appropriate.” Id. at 26-28.
(8) Cumulative error: that grounds one through seven in the aggregate constitute cumulative error. Id. at 28-30.

         Petitioner seeks immediate release from custody, vacatur of his convictions, and a new trial. Id. at 31-32.[4]

         D. APPLICABLE LAW[5]

         The “AEDPA requires that [courts] apply a difficult to meet and highly deferential standard in federal habeas proceedings under 28 U.S.C. § 2254; it is one that demands that state-court decisions be given the benefit of the doubt.” Simpson v. Carpenter, 912 F.3d 542 (10th Cir. 2018) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)) (internal quotation marks omitted). “[T]he standard of review applicable to a particular claim depends upon how that claim was resolved by state courts.” Cole v. Trammel, 735 F.3d 1194, 1199 (10th Cir. 2013). When a petitioner includes in his habeas application a “claim that was adjudicated on the merits in state court proceedings, ” a federal court shall not grant relief on that claim unless the state-court decision:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Simpson, 912 F.3d 542 (quoting 28 U.S.C. § 2254(d)(1)-(2)).

         To determine “whether a state court's decision involved an unreasonable application of federal law or was based on an unreasonable determination of fact, ” a federal habeas court must “train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims and give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (internal quotations and citations omitted). “This is a straightforward inquiry when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. Review becomes more difficult, however, when a state court fails to accompany its decision with a reasoned opinion. In such an instance, a federal habeas court “should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Id.

         Once a federal habeas court locates the relevant rationale, it then can determine whether the decision was contrary to or an unreasonable application of Supreme Court law. A state court decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). This does not require the state court to cite applicable Supreme Court precedent or even demonstrate an “awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradict them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original).

         A state court decision is an “unreasonable application” of Supreme Court law if the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Williams, 529 U.S. at 407-08. Courts apply this objective unreasonableness inquiry “in view of the specificity of the governing rule: The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Simpson, 912 F.3d 542 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). If, however, “a legal rule is specific, the range may be narrow, ” thus “[a]pplications of the rule may be plainly correct or incorrect.” Yarborough, 541 U.S. at 664. It is also important to note that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly”; “that application must also be unreasonable.” Id. at 411.

         E. ANALYSIS

         The Court will consider in turn each of Petitioner's eight grounds for relief. In its discretion, the Court will examine the due process, Fourth Amendment, and confrontation claims before turning to Petitioner's criticisms of the effectiveness of his trial and appellate counsel. The Court will end its analysis by addressing Petitioner's contention of cumulative error.

         A. Judicial Misconduct Amounting to Due Process Violation[6]

         Petitioner first asserts that he is entitled to relief because the state district court dismissed his state habeas petition without holding an evidentiary hearing, thus denying him due process under the Fourteenth Amendment. See Pet. 7-11.

         1. Relevant Facts

         Petitioner file his state habeas petition in the Second Judicial District Court on April 18, 2017. Answer, Ex. T at 1 (attach. 2, 28).[7] He advanced eight grounds for relief: (1) violation of due process, (2) right to be free from unlawful search and seizure, (3) right to confrontation, (4) ineffective assistance of trial counsel, (5) erroneous/modified jury instruction, (6) ineffective assistance of appellate counsel, (7) denial of appellate due process, and (8) cumulative error. Id. at 3 (attach. 2, 30). After receiving an initial review of the petition by the public defender post-conviction unit, [8] Ex. U (attach. 2, 63-8), the state district court summarily dismissed all counts on June 28, 2018, without conducting an evidentiary hearing. Ex. V at 1-2 (attach. 2, 69-70).

         2. Legal Standard

         For a federal court to issue a writ of habeas corpus to a state prisoner, that prisoner must demonstrate a federal constitutional violation, as “federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). A cognizable claim targets federal constitutional violations associated with a state court's judgment, rather than a collateral attack on the state's post-conviction proceedings. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (“Even if it was not barred, [the petitioner's] claim challenging the Oklahoma post-conviction procedures on their face and as applied to him would fail to state a federal constitutional claim cognizable in a federal habeas proceeding.”). Further, in the Tenth Circuit, a state court's error on post-conviction review, including denying a habeas petition without an arguably warranted evidentiary hearing, is not a cognizable federal habeas claim. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (denying relief under § 2254 when claim focused on state court's post-conviction remedy); see also Weaver v. Ward, 18 Fed.Appx. 697, 698 (10th Cir. 2001) (unpublished) (“[N]o federal constitutional provision requires a state to provide post-conviction review, and any error in this regard is simply a matter of state law and not cognizable on federal habeas review.”).

         3. Analysis

         Petitioner asserts that the state district court violated his due process rights and committed judicial misconduct when it allegedly disregarded Rule 5-802, which “governs the procedure for filing a writ of habeas corpus by persons in custody” in the state of New Mexico. N.M.R.A. 5-802(A). Specifically, Petitioner argues that Rule 5-802(H)(4), which pertains to preliminary disposition hearings, required the state district court to grant him an evidentiary hearing. Pet. 9; see N.M.R.A. 5-802(H)(4) (providing that “[t]he court shall then determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the court shall dispose of the petition without a evidentiary hearing, but may ask for briefs and/or oral arguments on legal issues[.]”).

         Any mistake made by the state district court in its application of Rule 5-802, however, would be an error of state law, which is not cognizable in the federal habeas corpus context. See Sellers, 135 F.3d at 1339. Furthermore, Rule 5-802 does not require a state district court to provide an evidentiary hearing. Rather, it allows for discretion in making such a determination-discretion the state district court appears in all respects to have properly exercised. See Exs. U, V. Even if the state procedural rule required a hearing, however, the federal constitution still does not mandate that a state provide a prisoner with any post-conviction review at all-let alone an evidentiary hearing. See Weaver, 18 Fed.Appx. at 698. Consequently, Petitioner's claim of judicial misconduct is not cognizable under § 2254 and this Court recommends relief be denied.

         B. Insufficient Evidence of Guilt Amounting to Due Process Violation

         Petitioner next asserts a due process violation in the form of the right to be “free from prosecution [and] conviction [for] crimes not committed.” Pet. 12. Specifically, he argues the State failed to prove “specific intent beyond a reasonable doubt” because the lead detective on the case testified that Petitioner “was basically present during [the] drug deal.” Id. at 13. In sum ...


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