United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Petitioner's application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Doc. 1. Having reviewed the petition and
Respondents' answer (doc. 11), I find that the
claims raised do not justify habeas relief. I therefore
RECOMMEND that the Court DENY Petitioner's application
and DISMISS his claims with prejudice.
Background of Proceedings
Branch was convicted in state court on July 14, 2008, of the
following offenses: murder in the first degree, aggravated
battery against a household member, aggravated assault
against a household member, aggravated assault, and
aggravated fleeing a law enforcement officer. See doc.
11-1 at 1-2, Exhibit A. He was sentenced at that time to
life for first-degree murder, three years for aggravated
battery against a household member, and eighteen months each
for the offenses of aggravated assault against a household
member, aggravated assault, and aggravated fleeing.
Id. at 2. In addition, due to his prior convictions,
the sentences for aggravated battery against a household
member, aggravated assault against a household member,
aggravated assault, and aggravated fleeing were enhanced by
four years each. Id. at 3. Mr. Branch's
convictions were upheld by the New Mexico Supreme Court on
direct appeal. See doc. 11-1 at 112-29, Exhibit J;
doc. 11-2 at 25, Exhibit L (denying motion for
13, 2011, Mr. Branch filed a petition for habeas corpus in
the First Judicial District of New Mexico. Doc. 11-2
at 27, Exhibit N. This petition was denied in the First
Judicial Court on December 18, 2014. Doc. 11-2 at
60, Exhibit T. However, upon Mr. Branch's petition for
certiorari review, the New Mexico Supreme Court ordered the
State of New Mexico to respond on the issue of whether
Petitioner's double jeopardy rights were violated when he
was convicted of first-degree murder under a general verdict
that included a theory of felony murder, without vacating the
conviction of any offense that could have served as the
Doc. 11-2 at 77 - 78, Exhibit V. In its response,
the State conceded that the predicate felonies of aggravated
battery against a household member, aggravated assault
against a household member, and aggravated assault should be
vacated to avoid violating Mr. Branch's rights under the
Double Jeopardy Clause. See doc. 11-2 at 84, Exhibit
W. The State therefore requested a limited remand for the
entry of an amended judgment and sentence. Id. at
29, 2015, the New Mexico Supreme Court granted Mr.
Branch's petition and remanded to the First Judicial
District Court for entry of an amended judgment and sentence,
vacating Mr. Branch's convictions on counts II, III, and
IV. Doc. 11-2 at 115- 16, Exhibit Z; doc.
11-2 at 117, Exhibit AA. The First Judicial District
Court subsequently entered an Amended Judgment and Sentence
on December 8, 2015, reducing Mr. Branch's convictions to
murder in the first degree and aggravated fleeing a law
enforcement officer. Doc. 11-3 at 1-2, Exhibit BB.
The amended order sentenced Mr. Branch to life for
first-degree murder, and eighteen months plus a four-year
habitual offender enhancement for aggravated fleeing.
Id. at 2-3.
December 23, 2015, Mr. Branch filed another petition for writ
of habeas corpus in state court, this time proceeding pro
se. Doc. 11-3 at 5, Exhibit CC. Relevant to the
petition now before this Court, he requested relief on the
specific bases, inter alia, of double jeopardy and
admission of his prior felony convictions at trial.
Id. at 8. The First Judicial Court denied his
petition on May 26, 2016, doc. 11-3 at 28, Exhibit
EE, and the New Mexico Supreme Court denied certiorari review
on July 24, 2017, doc. 11-3 at 133, Exhibit GG.
Branch then filed the instant petition for writ of habeas
corpus in this Court on July 24, 2017. Doc. 1. In
response to the Court's Order to Cure Defects (doc.
2), he completed an amended petition in the correct
form. Doc. 4. Respondents timely filed their answer,
per the Court's order, on March 26, 2019. Doc.
11. Mr. Branch's application is now before the
the instant application for writ of habeas corpus raises four
grounds for relief. Doc. 4. In their answer,
however, Respondents construe Mr. Branch's petition as
raising only two issues: double jeopardy and admission of
prior convictions. Doc. 11 at 3-4. The Court must
therefore determine the actual nature and number of the
grounds for relief alleged. Mr. Branch's amended petition
asserts the following:
Ground One: Double Jeopardy. My murder was upheld after my
predicate felonies which may have served in the conviction of
felony murder were dismissed[.]
Ground Two: Predicate Offense to Felony Murder. Predicate
offenses may have served in the conviction of felony
1st degree murder[.]
Ground Three: Harmless Error Analysis. My prior convictions
were raised illegally which is now automatically nothing to
do with my present case[.]
Ground Four: Double Jeopardy. My murder is being upheld after
the predicate felonies to felony murder were dismissed which
I was never fairly tried or convicted as if these predicate
felonies were dismissed I was never awarded a fair trial
cause the predicate felonies dismissed could have been used
in the conviction of my murder.
Doc. 4 at 5-10.
would subsume Grounds One, Two, and Four into a single double
jeopardy claim. See doc. 11 at 3 (characterizing Mr.
Branch as “arguing that…he has been subjected to
double jeopardy because his first-degree murder conviction
was upheld while convictions for the predicate felonies were
vacated (Grounds 1, 2, and 4)”). The undersigned agrees
that Grounds One, Two, and Four are closely related. However,
Mr. Branch chose not to characterize Ground Two
(“Predicate Offense to Felony Murder”) as a
double jeopardy claim, indicating that he may have intended
to raise a different legal issue. Therefore, the undersigned
treats Ground Two as a potentially separate ground for
relief. Because Grounds One and Four appear to be
functionally identical, they will be addressed simultaneously
under the heading of double jeopardy.
Applicability of § 2254(d)
Branch petitions the Court for relief under 28 U.S.C. §
2254, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Because § 2254(d) applies
more stringent requirements to claims previously adjudicated
on the merits in state court, “it is important whether
a federal claim was ‘adjudicated on the merits in ...