United States District Court, D. New Mexico
JOSEPH C. PERRY, Petitioner,
ATTORNEY GENERAL OF STATE OF NEW MEXICO, Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Joseph C. Perry (Perry) filed a
Petition for a Writ of Habeas Corpus under the
Anti-Terrorism and Effective Death Penalty Act (AEDPA) 28
U.S.C. § 2254, arguing that his New Mexico conviction
and sentence for criminal sexual penetration and bribery and
intimidation of a witness violates his constitutional rights.
Perry presents sixteen claims for relief. Respondent has
answered the Petition,  and Perry has
replied. The Court has reviewed the Petition,
all the briefing and the applicable law. For the reasons
explained below, the Court concludes that Perry is not
entitled to habeas relief and will dismiss the Petition with
BACKGROUND AND PROCEDURAL HISTORY
the AEDPA, a federal court must presume that a state
court's factual findings are correct unless clear and
convincing evidence indicates otherwise. 28 U.S.C. §
2254(e)(1). There are few factual findings in the record;
however, the procedural history, verdict, and record support
September 2, 2006, Perry was in the Otero County Detention
Center. His cellmate was 18-year-old Joshua Sommer. At trial,
Mr. Sommer testified that on September 2, 2006, Perry seized
him, put a sock in his mouth to gag him and then sexually
assaulted him. After the assault, Perry threatened to harm
Mr. Sommer if he told anyone about what happened.
October 3, 2006, a New Mexico grand jury indicted Perry for
kidnapping, second-degree criminal sexual penetration,
bribery/intimidation of a witness, and two counts of
tampering with evidence. Resp't Ap (Doc. 11-1), Ex. B at
6. During the trial, Contract Public
Defender, Mario Torres represented Perry. At the trial, the
prosecution called several witnesses, including a Sexual
Assault Nurse Manager (SANE), state detectives, a lab tech,
employees of the detention center, and inmates Dale Ray Dixon
and Castille Amaya. See Recording, CR 2006-539. The
prosecution produced DNA evidence and other exhibits
including photos of the crime scene. Id.
conclusion of the trial, but before the jury began to
deliberate, the bailiff told the court that one of the jurors
was making inappropriate statements. CR 2006-539, Day Three
at 9:00. Defense counsel asked for a mistrial. The court
denied the mistrial, finding that any error would be cured by
dismissal of the juror. Id. at 9:16-9:17. The court
dismissed the juror and appointed the alternate before the
jury began deliberations. Id.
August 23, 2007, the jury found Perry guilty of criminal
sexual penetration and intimidation of a
witness. After trial but before sentencing,
Perry alleged that his trial counsel was ineffective, and
asked for new counsel. Id. at Ex. G, 44.
Subsequently, Mr. Gerald Montrose, a contract public defender
was appointed to represent Perry in his future proceedings.
August 27, 2007, the state filed a Supplemental Criminal
Information, seeking a habitual enhancement under NMSA 1978
§ 31-18-17. See Id, Ex. C at 10-15.
Subsequently, on February 11, 2008, the Twelfth Judicial
District Court of the State of New Mexico (state district
court) imposed a sentence of nine years for the criminal
sexual penetration offense and three years for the
intimidation of a witness offense. Id., Ex. A at
1-2. The state district court then found that the Perry was a
habitual offender under New Mexico law and enhanced both
sentences individually by eight years, to run concurrently
for a total sentence of 28 years. Id. at 2.
Perry's appeal and lengthy post-convictions proceedings
are recounted in detail below.
August 11, 2008, Perry, through counsel, filed a notice of
appeal with the New Mexico Court of Appeals (NMCA). RA (Doc.
11-1) Ex I at 46. On January 16, 2009, Perry filed a
docketing statement with the NMCA. The NMCA rejected Mr.
Perry's docketing statement on February 17, 2009
“because it failed to provide the facts and law
necessary for [the NMCA's] review of Defendant's
claims of error.” Id., Ex. L at 68
(summarizing sequence of events). On March 12, 2009, Perry
filed an amended docketing statement. Id., Ex. K at
52-58. In his amended statement, Perry made the following
Issue 1 - Whether trial related statements made by a seated
juror in the presence of other jurors before juror
deliberations warrants a granting of a mistrial.
Issue 2 - Whether Defendant's Miranda rights were
violated in the taking of a statement made by Defendant and
used at trial.
Issue 3 - Whether Defendant's rights to a speedy trial
Issue 4 - Whether Defendant was harmed by State Brady
violations. Defendant alleges that potential exculpatory
evidence was withheld by the state.
Issue 5 - Whether trial counsel was ineffective thus
warranting a new trial.
Issue 6 - Whether pretrial publicity warranted a change of
venue and if Defendant was denied the change in venue.
Issue 7 - Any and all issues which would affect
Defendant's right to a fair trial.
Id., Ex. K at 56-57.
April 30, 2009, the NMCA entered a Notice of Proposed Summary
Disposition (Notice). Id., Ex. L at 67. On the
merits, the NMCA proposed to affirm the trial court on all
issues for one of the following reasons: the issue had been
abandoned, Perry had failed to preserve the issue during the
state court proceedings, or the issue was unsupported
factually or legally. Id.
then requested and was granted new appellate counsel,
and Mr. Karl Erich Martell was appointed. See Id.,
Ex. G at 44. On June 10, 2009, Mr. Martell filed Defendant
Appellant's Memorandum in Opposition to Proposed Summary
Affirmance (Opposition Brief). Id., Ex. M at 74-88.
Opposition Brief, Perry expanded his arguments on all issues.
First, he argued that his previous counsel had incorrectly
framed his claims concerning inappropriate juror statements
and his right to a fair trial. According to Perry, his claim
concerning the juror statements should have alleged that a
juror stated, “Mr. Perry is guilty” and that the
trial court erred when it failed to conduct a voir dire of
every juror after learning of the juror's improper
statements. Id. at 76. Perry argued that instead of
making a claim based on any error that impeded his right to a
full trial, his counsel should have alleged that cumulative
error denied Perry his right to a fair trial. Id. at
85. Perry acknowledged that his argument concerning a
violation of his Miranda rights had been abandoned.
Id. at 78. Perry further admitted that he had not
argued and thus failed to preserve his right to a speedy
trial, his claim regarding exculpatory evidence, and his
claim that he should have received a change of venue, but he
asked that the NMCA remand for an evidentiary hearing and/or
so he could perfect his appeal on these issues. Id.
at 79-80, 84-85. Finally, Perry moved to amend the docketing
statement to include “a challenge to the sufficiency of
the evidence to support his habitual offender
enhancement.” Id. at 86.
31, 2009, the NMCA affirmed Perry's conviction
(“MOO”). Id., Ex. N, at 89. The NMCA did
not find Perry's Opposition Brief persuasive. In
addressing Perry's argument concerning juror statements,
the NMCA found that the judge had not erred when he denied
Perry's request for a mistrial, and that Perry had failed
to preserve his argument that the judge should have conducted
a voir dire of the jurors because Perry never requested it.
Id. at 90-93. Similarly, the NMCA found that Perry
had conceded that he had not preserved his arguments
concerning his right to a speedy trial, change of venue, or
exculpatory evidence. Id. at 93-94, 96. Because
Perry agreed that his claim concerning his Miranda
rights had been abandoned, the NMCA did not further address
it. Id. at 92. The NMCA found there was insufficient
evidence to support Perry's ineffective assistance of
counsel claim and stated that such claims were best brought
in habeas proceedings. Id. at 94-95. The NMCA
concluded that because it was Perry's burden to identify
error, and he had not done so, there could be no cumulative
error. Id. at 96. Finally, the NMCA denied
Perry's motion to amend his docketing statement with a
challenge to his habitual offender enhancement. Id.
at 97. The NMCA observed that New Mexico law specifically
provides for the use of a prior no contest conviction to
enhance a sentence under the habitual offender statute and so
any amendment would not be viable. Id. On August 12,
2009, Perry filed a petition for a writ of certiorari,
identifying the same issues raised in his Amended Docketing
Statement and expanded in his Opposition Brief. Id.,
Ex. O at 99.
Mexico Supreme Court denied his petition without further
explanation on September 2, 2009. Id., Ex. P at 110.
Its mandate issued on October 9, 2009. Id., Ex. Q at
this time, Perry also pursued two motions with the state
district court, which he filed pro se. On May 22, 2009, Perry
filed a Motion to Disclose Chain of Custody to All Evidence
(Disclose Evidence Motion) and a Motion to Preserve All
Evidence (Preserve Evidence Motion). Id., Ex. R at
112, Ex. S at 114. The Disclose Evidence Motion asserted that
the district attorney had a duty to disclose all
evidence/chain of custody to the Plaintiff under New Mexico
law. The Preserve Evidence Motion asked for a judgment of
acquittal and that the state court preserve certain evidence
for an appeal based on the sufficiency of the evidence.
See RA (Doc. 11-2), Ex. V at 2 (amended docketing
statement explaining arguments on appeal).
29, 2009, the state district court denied both motions based
on timeliness. RA (Doc 11-1), Ex. T at 116. Perry appealed
the denial on July 16, 2009. Id., Ex. U at 117. The
NMCA filed a Notice [of] Proposed Summary Disposition on
September 25, 2009. RA (Doc. 11-2), Ex. X at 8. In
its proposed summary disposition, the NMCA found that the
appealed orders were not properly before it and that the
matters were beyond their jurisdiction for the following
reasons: 1) the denials of the motions were not appealable
orders; 2) the appeal was not before the NMCA as of right
because Perry had already pursued one appeal in the case; and
3) Perry had filed the appeal pro se while he had
representation. Id. at 9-11. The NMCA proposed to
summarily dismiss. Id. at 11.
Perry did not respond to the New Mexico Court of Appeals
Notice of Proposed Summary Disposition, the New Mexico Court
of Appeals entered a Memorandum Opinion dismissing the appeal
on January 4, 2010. Id., Ex. Y at 12. Its mandate
issued on February 18, 2010. Id., Ex. Z at 14.
Application for State Habeas Relief
December 14, 2009, while the appeal of the state court's
denials of Perry's Disclose Evidence Motion and his
Preserve Evidence Motion were pending in the NMCA, Perry, pro
se, filed his first state Petition for a Writ of Habeas
Corpus (First State Habeas Petition). Id., Ex. AA at
15. The petition asserted the following thirteen grounds:
GROUND ONE: Miranda Rights, Fifth Amendment Violations;
GROUND TWO: Six month Rule date, Speedy trial, Due process;
GROUND THREE: Discovery, “Brady” violation, NMRA,
GROUND FOUR: Ineffective Assistance of Counsel;
GROUND FIVE: Constitutional challenges to jury selection
GROUND SIX: Contamination of Extraneous Influences;
GROUND SEVEN: Pretrial and trial Publicity;
GROUND EIGHT: Prosecutorial misconduct;
GROUND NINE: Habitual Enhancement;
GROUND TEN: Concern related to Plea of NO contest;
GROUND ELEVEN: Procedures for post conviction consideration
GROUND TWELVE: Cumulative Effect of Counsel's Errors;
GROUND THIRTEEN: Fundamental Error.
Id. Ex. AA at 18-24.
January 10, 2010, the state district court entered an Order
denying the First State Habeas Petition, finding that
“[i]t plainly appears from the face of the Petition and
the prior proceedings in the case that the Court has no
jurisdiction to grant the relief sought.” Id.
Ex. BB at 40.
January 29, 2010, Perry filed a Petition for a Writ of
Certiorari, arguing that the state district court had
wrongfully denied his First State Habeas Petition.
Id., Ex. CC at 41. On February 26, 2010, the New
Mexico Supreme Court denied Perry's petition.
Id. Ex. DD at 82.
Application for State Habeas Relief
August 10, 2010, Perry pro se, filed a second Petition for
Writ of Habeas Corpus (Second State Habeas Petition).
Id., Ex. EE at 83. As grounds, Perry alleged:
GROUND ONE: Conviction obtained by the knowing use of
perjured testimony at trial by Deputy District Attorney
Janice B. Schryer;
GROUND TWO: Conviction obtained by unconstitutional jury
Id. at 85. To the petition, Perry attached a
declaration signed by Dale Ray Dixon stating that state
officers coerced both his witness statements and his trial
testimony. Id. at 86. Mr. Dixon retracted his trial
testimony that he had spoken with Perry or the victim on the
morning of the sexual assault. On January 31, 2011, the state
district court denied Perry's Second State Habeas
Petition, finding that as a matter of law, he was not
entitled to relief. Id., Ex. FF at 109.
February 22, 2011, Perry filed another petition for a writ of
certiorari. RA (Doc. 11-3), Ex. GG at 1. On April 7, 2011,
the New Mexico Supreme Court entered an Order granting this
petition and ordering the state district court to appoint an
attorney for Perry and to conduct an evidentiary hearing.
Id., Ex. II & JJ, at 79-81. On December 11,
2019, the state district court gave Perry an extension for
filing an amended petition. Id., Ex. LL at 86.
for Post-Conviction Consideration of DNA Evidence
November 8, 2011, Perry filed a Petition for Post-Conviction
Consideration of DNA Evidence Testing, seeking DNA testing of
the socks allegedly used as a gag during the sexual assault.
Id., Ex. MM at 83. Much later, on January 20, 2015,
Perry filed a second Motion to Grant Petition for
Post-conviction Consideration of DNA Evidence Testing.
Id., Ex. QQ at 117.
to the evidentiary hearing ordered by the New Mexico Supreme
Court, the state district court denied Perry's 2011
motion to allow DNA evidence testing of a sock that may have
been used to gag the victim. Pet's App. (Doc. 1-17),
Order Denying Defendant's Motion to Grant Petition for
Post-Conviction Consideration of DNA Evidence Testing at 7-8.
Amended State Petition for Habeas Corpus
March 20, 2012, Perry filed an amended state petition for
habeas corpus (Amended State Petition). Id., Ex. OO
at 87. In his Amended State Petition, Perry reasserted the
previous two grounds and the following:
1. Prosecutorial misconduct for failure to disclose material,
exculpatory evidence and the knowing ...