United States District Court, D. New Mexico
GABRIEL G. QUINTANA, Petitioner,
JAMES MULHERON, Warden, and HECTOR H. BALDERAS, Attorney General for the State of New Mexico Respondents.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Petitioner Gabriel
Quintana's pro se “Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254” (“Petition”) [ECF
No. 1], Respondents' Answer [ECF No. 16], and
Petitioner's Response [ECF No. 18]. Having reviewed
the briefing and being fully advised, this Court recommends
the Petition be DENIED for the reasons that
Mexico state court jury convicted Petitioner of first degree
murder, attempt to commit a violent felony, second degree
murder, aggravated battery against a household member,
tampering with evidence, and violation of a protective order.
On direct appeal, the New Mexico Supreme Court
(“NMSC”) affirmed,  except for the aggravated battery
conviction. The NMSC determined that that conviction
constituted a predicate felony to the felony murder
conviction in violation of the constitutional protections
against double jeopardy. On remand, the state district court
re-sentenced Petitioner to a term of life imprisonment plus
six years, with an award of 781 days of pre-sentence
November 19, 2009, Petitioner filed a pro se writ of habeas
corpus in state court. Petitioner's appointed counsel
subsequently filed an amended petition that included an
affidavit from Cynthia Hill, in which she asserted that she
and her co-counsel had provided ineffective assistance as
Petitioner's trial counsel. The state habeas court
ordered the State to file a response. The State failed to
comply with the order for reasons not relevant to the instant
Petition. Consequently, the state district court granted the
writ of habeas corpus, vacated Petitioner's convictions,
and ordered a new trial. Soon after, the State filed a motion
to reconsider. At the hearing on the motion, the State
introduced a competing affidavit by Damian Horne,
Petitioner's other trial counsel, that contradicted the
assertions made by Ms. Hill. The district court nonetheless
denied the motion to reconsider. The State appealed.
NMSC reversed the grant of habeas relief and remanded back to
the district court with directions to permit the State to
file a response and also to hold “an evidentiary
hearing on the merits of Quintana's petition because of
the factual issues created by the competing affidavits of
Quintana's trial counsel.” Quintana v.
Bravo, 2013-NMSC-011, ¶ 33, 299 P.3d
The State's response-supported by Mr. Horne's
affidavit-denied the allegations in Petitioner's
ineffective assistance claim. Petitioner then amended his
habeas petition and the State again responded. Upon
completion of the briefing, the parties deferred to the state
habeas court to determine which claims would receive an
court held an evidentiary hearing to consider these claims:
From the Pro Se Petition, the following claims survived:
Ground Three (regarding victims' family's involvement
in drug dealing), Ground Six (that Petitioner wanted to take
the stand in his own defense), and Ground Seven (regarding an
anonymous letter purportedly identifying the actual
perpetrator). From the Amended Petition, the following claims
survived- that trial counsel was ineffective for: (1) failure
to effectively impeach prosecution witnesses; (2) failure to
investigate; (3) failure to retain expert witnesses; and (4)
cumulative effect of counsel's errors.
Answer, Ex. TT at 2 (attach. 4, 80). On February 23, 2018, the
district court denied habeas relief. Petitioner sought review
by the NMSC on March 22, 2018, but the court denied review on
March 30, 2018. On May 18, 2018, Petitioner then sought
review 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 NMSC
are correct. See 28 U.S.C. § 2254(e)(1); Schriro v.
Landrigan, 550 U.S. 465, 473-74 (2007). The NMSC
summarized the facts as follows:
Gabriel (Defendant) and Marisela Quintana were married in
2003. In June 2005, Marisela left Defendant and moved in with
her parents two miles away. In August of that year, Marisela
obtained an order of protection barring Defendant from any
contact with her or the couple's children. Defendant
violated the order by physically confronting Marisela at her
place of work, and, on September 4, by going to her
parents' home in an attempt to remove the children.
On the morning of September 5, 2005, Marisela left for work
in her two-door Chevrolet Cavalier, accompanied by her mother
Elisa Apodaca. As they approached the main highway, Defendant
emerged from the bushes and stood in front of the car wearing
black pants and a black jacket. He was angry and said he
wanted to get back together with Marisela. Elisa told
Defendant that Marisela did not want to be involved with him
any longer. Marisela asked Defendant to move, but he
persisted, ultimately opening the car door, entering the rear
of the car, and attacking Marisela. He stabbed her in the
leg, arms, back, breast and face. The wounds were not life
When Defendant finally relented, Marisela locked the doors
and started to drive to the highway to look for help.
However, she noticed that Elisa was no longer in the vehicle,
and as she drove away, Marisela observed Defendant in the
driveway with his hand raised above Elisa. Marisela arrived
at the home of her neighbors, who helped contact the police
Elisa died at the scene, sustaining at least nine stab
wounds, several of which penetrated deep within vital areas
of her body cavity. She also suffered several defensive
wounds. She died as a result of blood loss from a combination
of the wounds, the most severe of which severed her aorta.
Approximately twelve hours after the attack, police received
a tip from Defendant's brother, Carlos Heredia, stating
that Defendant was at their parents' house changing
clothes. Defendant was apprehended in the vicinity shortly
thereafter wearing a blue T-shirt, dark sweat pants, and
boots. His clothes were wet from the waist down, and appeared
soiled and littered with stickers. There was no blood on
Defendant's clothing at the time of his arrest. Whether
these were the same clothes he wore at the time of the attack
is a matter of some dispute, though the fact is not
The police investigation revealed two additional sets of
facts relevant to our consideration regarding Defendant's
conduct between the time of the attack and his apprehension.
First, another of Defendant's brothers, Librado Heredia,
told investigators that Defendant had contacted him,
admitting that he had stabbed Marisela and Elisa, and
requesting money to go to San Diego. State Police Officer
Lorenzo Aguirre testified at trial that Librado had reported
the same to him when he arrived at the home of
Defendants' parents on the morning of September 5.
Second, at about 7:00 a.m. on the day of the attack, a
janitorial worker observed an occupied white Ford truck near
the restrooms in a no-camping area at Abiquiu Dam. He
observed the same truck in the same location the following
day, and reported the vehicle to Ranger Phil Martinez. On
Wednesday, two days after the attack, Ranger Martinez
inspected the vehicle and discovered a receipt and a torn
photograph of Defendant's family in a garbage bag in the
bed of the truck. Ranger Martinez then contacted law
enforcement, which later verified that the truck was
registered to Defendant. They then obtained a warrant and
searched the truck, finding nothing of significant
State v. Quintana, No. 30, 847, 2009 WL 6608347, at
*1-2 (N.M. Oct. 19, 2009).
advances three grounds for relief:
(1) Ineffective assistance of trial counsel: that an
affidavit from trial counsel establishes ineffectiveness.
(2) Victim's family were not made available for
questioning: that questioning the victim's family
members would have exonerated Petitioner. Id. at 11.
(3) Three knives found in victim's vehicle that
matched the stab wounds were never taken into custody:
that three bloody knives allegedly found in the victim's
car would have proven Petitioner's innocence.
Id. at 13.
respect to Grounds One and Two, Petitioner exhausted the
available state court remedies. See Exs. L (attach.
2, 5-18), N (attach. 2, 21-77), UU (attach. 4, 90-107).
Petitioner failed to exhaust Ground three, but Respondents
have expressly waived the exhaustion requirement.
See Answer 6; see also 28 U.S.C. §
2254(b)(3). Therefore, the Court will address all
three grounds on the merits.
APPLICABLE LAW 
“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