United States District Court, D. New Mexico
ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
January 25, 2019, Petitioner Justin John Mark filed
OBJECTIONS (Doc. 45) to the Magistrate Judge's PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION (Doc. 44) (PFRD) entered
on January 16, 2019. On January 31, 2019, Petitioner filed
two supplements and one letter to his
objections. After de novo review, the Court will
overrule the Objections and adopt the PFRD.
convicted Petitioner of first-degree murder for the death of
Kevin Lossiah and of one count of tampering with evidence. At
the sentencing hearing, three of the victim's relatives
testified, and Petitioner's sister testified. Resp't.
Suppl. (Doc. 28-5), Tr. at pp. 55-57. Petitioner's
attorney argued that when sentencing, the state court should
consider Petitioner's alcoholism and his difficult
childhood as mitigating factors. Id. at 57. After
stating that it had considered the presentence report and the
testimony, the state court sentenced Petitioner to 30 years
(life) for the first offense and for the second offense, a
consecutive sentence of 3 years. Resp't App. (Doc. 17-1),
Ex. A at 1.
pursued a direct appeal, which the New Mexico Supreme Court
denied. On July 1, 2015, Petitioner filed a Motion for
Reconsideration of his Sentence. In that motion, for the
first time, Petitioner raised his mental abilities.
Petitioner stated that he was “mentally impotent; I get
pay from social security disability income.” Resp't
App. (Doc 17-2), Ex. J. at 33. On July 8, 2015, the state
district court denied this Motion, stating that the Motion
was untimely. Id., Ex. K at 35. On July 22, 2015,
Petitioner filed a state habeas petition. Id., Ex.
L. at 36. As grounds, Petitioner stated, (1) sufficiency of
the evidence, (2) ineffective assistance of counsel, and (3)
suppression of evidence.
provided in NM Rule 5-802, the Post-Conviction Habeas Unit
Law Office of the Public Defender examined the state
petition. The public defender determined that the state
petition did not state a claim and recommended that the state
court dismiss it. Id. at 55. On September 23, 2015,
the state court dismissed the petition. Id., Ex. N.
November 9, 2016, Petitioner filed a federal habeas petition
asserting three claims: 1) a violation of his Confrontation
Clause rights when a forensic pathologist who did not conduct
the autopsy of his victim testified about the victim's
death; 2) a violation of his right to effective assistance of
counsel when his attorney did not investigate
Petitioner's competence or comply with Petitioner's
instructions; and 3) a violation of his liberty rights based
on his actual innocence. On June 26, 2017, Magistrate Judge
Yarbrough entered proposed findings that Petitioner's
claim of actual innocence had not been exhausted and
recommending that the Court permit Petitioner to dismiss the
unexhausted claim and proceed on the exhausted ones. Proposed
Findings and Recommended Disposition (Doc. 24) (PFRD I).
Petitioner submitted a letter to the Court stating that he
wished to drop his unexhausted claim. Letter (Doc. 22). On
August 3, 2017, United States District Court Judge Junell
adopted Magistrate Judge Yarbrough's PFRD I. Order (Doc.
January 1, 2019, Magistrate Judge Yarbrough entered a second
PFRD. (Doc. 44) The PFRD recommends that the Court find that
the Petitioner is not entitled to habeas relief. Petitioner
filed the Objections. See (Doc. 45), (Doc 46), (Doc
47) (Doc. 48). In his Objections, Petitioner restates his
Confrontation Clause claim and his ineffective assistance of
counsel at trial claim and adds a new claim of ineffective
assistance of counsel at sentencing.
STANDARD OF REVIEW
party files written objections to a magistrate judge's
proposed findings and recommendations, the district court
must conduct de novo review “of those portions . . . to
which objection is made.” 28 U.S.C. § §
636(b)(1)(C). “De novo review requires the district
court to consider relevant evidence of record and not merely
review the magistrate judge's recommendation.”
Griego v. Padilla (In re Griego), 64 F.3d 580, 584
(10th Cir. 1995) (citation omitted). However, the district
court is not required to make any specific findings.
PFRD, Magistrate Judge Yarbrough found that Petitioner raised
two properly exhausted claims: (1) Petitioner's trial
counsel was ineffective for failing to investigate
Petitioner's alleged mental incompetence; and (2) it was
error that the doctor that testified at Petitioner's
trial was not the doctor that performed the autopsy of his
victim. Magistrate Judge Yarbrough found that trial counsel
was not ineffective because the state record does not support
Petitioner's claimed mental incompetency and that the
failure of the autopsy doctor to testify did not violate the
Confrontation Clause because the autopsy report was not
introduced into evidence.
Petitioner's Objections repeat the arguments considered
and rejected by Magistrate Judge Yarbrough. See
Objections (Doc.45) at 3-4 (Petitioner is mentally
incompetent because he is receiving disability payments from
the government); Id. at 5 (urging review of new
evidence not present in the state court record); Id.
at 8 (discussing Petitioner's need for mental health
counseling, and that he is slow thinking and has difficulty
speaking); Id. at 10 (raising claims that have been
dismissed as unexhausted); (Doc. 46) at 1 (discussing
Petitioner's need for regular medications); Id.
at 3 (discussing Petitioner's history of drug abuse);
(Doc. 48) at 3, 10 (discussing Petitioner's learning
disability). As Magistrate Judge Yarbrough explained in the
PFRD, “Petitioner's history of mental illness,
speech and learning disabilities, and receipt of disability
benefits does not equate to mental incompetency at the time
of his trial.” PFRD (Doc 44) at 8; see Lafferty v.
Cook, 949 F.2d 1546, 1561 (10th Cir. 1991) (“Not
all people who have a mental problem are rendered by it
legally incompetent.”); Miles v. Dorsey, 61
F.3d 1459, 1474 (10th Cir. 1995) (“Petitioner's
history of mental problems, low intelligence, psychotropic
medication, and substance abuse do not establish that he was
incompetent to plea.”). Therefore, failing to raise
this issue at trial did not render trial counsel's
performance deficient. In addition, the Court finds implicit
in Magistrate Judge Yarbrough's PFRD a determination that
Petitioner was sane, and not incompetent or insane at the
time Petitioner killed Mr. Lossiah.
Petitioner has attempted to bring new evidence of his mental
competency to these federal proceedings, a federal court
cannot review evidence that was not in the state court
record. Habeas review under § 2254(d) is limited to the
record that was before the state court that adjudicated the
claim on the merits. Cullen v. Pinholster, 563 U.S.
170, 180 (2011).
Petitioner asserts a new claim based on ineffective
assistance of counsel at sentencing. However, Petitioner did
not adequately raise this claim in his federal
Petition. To a question in the Petition asking for
supporting facts of Petitioner's ineffective assistance
of counsel claim, Petitioner responds that “he could
not assist in his own defense due to his incompetence.”
Petition (Doc. 12) at p. 5. The answer referencing
Petitioner's “defense” indicates that
Petitioner's claim centers on his counsel's
effectiveness at trial. Nowhere in the Petition does
Petitioner offer any supporting facts regarding competency at
sentencing nor does he claim ineffective assistance
specifically based on events that occurred at sentencing. At
this stage of the proceedings, it is ...