United States District Court, D. New Mexico
ALREE B. SWEAT, III, Petitioner,
JAMES MULHERON, Warden, Respondent.
ORDER ADOPTING PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, DENYING PETITION
FOR HABEAS CORPUS, DENYING MISCELLANEOUS MOTIONS, DISMISSING
CASE WITH PREJUDICE, AND DENYING CERTIFICATE OF
MATTER comes before the Court on Alree Sweat's
objections (Doc. 36) to Magistrate Judge Kevin Sweazea's
January 16, 2019 Proposed Findings and Recommended
Disposition (PFRD). (Doc. 35). In the PFRD, the magistrate
judge concluded that Sweat had not satisfied the
Antiterrorism and Effective Death Penalty's Act's
burden to show that, in refusing to set aside his
vehicle-burglary convictions because of alleged evidentiary
insufficiency and ineffective assistance of counsel, the
state court acted contrary to, or unreasonably applied,
clearly established federal law; or otherwise unreasonably
determined the facts. The magistrate judge, therefore,
recommended denying Sweat's petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Having reviewed
Sweat's objections and the record, the Court adopts the
magistrate judge's PFRD, denies Sweat's petition and
miscellaneous motions, and dismisses the matter with
Sweat is entitled to de novo review of the PFRD, he
must clear two hurdles. First, he must file timely
objections. See United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Second, he
must make specific objections. See Id. As to the
first requirement, Sweat's objections were received by on
February 7, 2019, a few days past the February 4, 2019
deadline. Nonetheless, Sweat included a certificate of
service that says he placed his objections in a stamped
envelope in the outgoing mail at the Southern New Mexico
Correctional Facility on February 4, 2019. The prisoner
mailbox rule renders Sweat's objections timely.
Houston v. Lack, 487 U.S. 266, 276 (1988)
(prisoners' documents are deemed filed when handed over
to prison authorities for mailing).
the specificity element, Sweat's objections fail.
Although Sweat's filing spans thirty-seven pages and
mentions the PFRD in the introduction and title, Sweat does
not identify those portions of the PRFD that he challenges.
“The filing of objections to a magistrate's report
enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” One Parcel, 73 F.3d
at 1059 (citations omitted). Without specific objections, the
Court cannot conduct the . . . de novo review” as the
Magistrate Judge Act contemplates. Hood v. Tex. Farmers
Ins. Co., 2017 U.S. Dist. LEXIS 84864, at *14 (D.N.M.
June 2, 2017); 28 U.S.C. § 636(b)(1)(C). Sweat has,
therefore, forfeited review of the PFRD under the “firm
waiver rule.” One Parcel, 73 F.3d at 1060 (the
Tenth Circuit “ha[s] adopted a ‘firm waiver
rule'”; the failure to lodge timely and specific
“objections . . . waives appellate review of both
factual and legal questions”) (citation omitted).
interests of justice, however, the Court has examined the
PFRD de novo as best it can and agrees with the
magistrate judge. A jury found Sweat guilty of several counts
of automobile burglary where his DNA was found in the
vehicles. On direct review, the New Mexico Court of Appeals
(“NMCA”) concluded that sufficient evidence
supported Sweat's convictions. The jury, the NMCA
reasoned, was free to reject Sweat's expert's
concerns over possible DNA contamination, excessive sampling,
and chain of custody. Sweat has not established the
NMCA's decision was contrary to or an unreasonable
application of federal due-process jurisprudence. See
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“A
reviewing court may set aside the jury's verdict [as
constitutionally insufficient] only if no rational trier of
fact could have agreed with the jury” and “a
federal court may not overturn a state court decision
rejecting a sufficiency . . . challenge . . . [unless] the .
. . decision was objectively unreasonable”).
post-conviction proceedings, the state district court
summarily denied Sweat's claims of ineffective assistance
of counsel. As above, Sweat has not carried his burden to
show this conclusion was contrary to or an unreasonable
application of Sixth Amendment law; or the product of an
unreasonable determination of the facts. Even if Sweat's
trial counsel was deficient, Sweat has not demonstrated
prejudice-a reasonable probability that (1) the motion to
suppress he says his attorney should have filed would have
succeeded; (2) expanding the docketing statement to include
appeal of the trial court's denial of consolidation of
all vehicle burglary charges would have resulted in a new
trial where he would have been acquitted; and (3) the trial
court would have dismissed his case had his attorney not
withdrawn Sweat's speedy trial rights.
extent Sweat's objections-and two separate motions (Docs.
32 & 37)-ask the Court to consider materials attached
them, Sweat has not demonstrated that the records were before
the state court in adjudicating the merits of the sufficiency
of the evidence and ineffective assistance of counsel.
See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Even where the state court summarily denies collateral
relief, review under AEDPA is limited to the record before
that court. See id.; 28 U.S.C. § 2254(d)(1).
Sweat believes the records “prove the judicial process
was abused, ” documenting malfeasance by the police and
prosecutor to manipulate the grand jury system to indict him
for the same conduct of which he was innocent and later
acquitted. (Doc. 32). Absent in Sweat's papers, however,
is any indication that the records were before the state
court or germane to any exhausted constitutional challenge
here. The Court declines to comb through “the entire
state court record . . . to ascertain whether facts exist
which support relief.” Adams v. Armontrout,
897 F.2d 332, 333 (8th Cir. 1990).
because Sweat has failed to make a substantial showing of a
denial of a constitutional right, the Court will also deny a
certificate of appealability. See Rule 11 of the
Rules Governing Section 2254 Cases.
IS, THEREFORE, ORDERED that
1. The magistrate judge's PFRD (Doc. 35) is
ADOPTED as an order of the Court and
Sweat's objections are OVERRULED.
2. Sweat's petition under 28 U.S.C. § 2254 for a
writ of habeas corpus, as amended, supplemented, and
clarified (see Docs. 1, 6, 15, 21, & 28) is
DENIED and this matter be DISMISSED
3. Sweat's motions to introduce and explain documentary
evidence (Docs. ...