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Perry v. Attorney General of State of New Mexico

United States District Court, D. New Mexico

March 13, 2019

JOSEPH C. PERRY, Petitioner,


         Pro se Petitioner Joseph C. Perry (Perry) filed a Petition[1] 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, [2] and Perry has replied.[3] 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 prejudice.


         Under 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 the following:

         On 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.

         On 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.[4] 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.

         At the 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.

         On August 23, 2007, the jury found Perry guilty of criminal sexual penetration and intimidation of a witness.[5] 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.

         On 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.

         Direct Appeal

         On 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 claims:

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 were violated.
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.

         On 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.

         Perry then requested and was granted new appellate counsel, [6] 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.

         In the 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.

         On July 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.

         The New 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 111.

         Post-Conviction Motions

          During 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).

         On May 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.

         When 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.

         First Application for State Habeas Relief

         On 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, Rule 5-501;
GROUND FOUR: Ineffective Assistance of Counsel;
GROUND FIVE: Constitutional challenges to jury selection procedures;
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 of DNA;
GROUND TWELVE: Cumulative Effect of Counsel's Errors;
GROUND THIRTEEN: Fundamental Error.

Id. Ex. AA at 18-24.

         On 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.

         On 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.

         Second Application for State Habeas Relief

         On 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 instructions.

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.

         On 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.

         Motion for Post-Conviction Consideration of DNA Evidence Testing

         On 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.

         Prior 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.

         Perry's Amended State Petition for Habeas Corpus

         On 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 ...

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