United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court 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.
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.
direct appeal,  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
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.
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
State v. Gallegos, No. 35, 531, 2016 WL 4942837, at
*2 (N.M. Ct. App. Aug. 29, 2016).
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.
(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
(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.
(8) Cumulative error: that grounds one through seven in the
aggregate constitute cumulative error. Id. at 28-30.
seeks immediate release from custody, vacatur of his
convictions, and a new trial. Id. at
“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;
(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. §
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.”
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).
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.
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.
Judicial Misconduct Amounting to Due Process
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.
file his state habeas petition in the Second Judicial
District Court on April 18, 2017. Answer, Ex. T at 1 (attach.
2, 28). 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,  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).
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.”).
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[.]”).
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.
Insufficient Evidence of Guilt Amounting to Due Process
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 ...