United States District Court, D. New Mexico
ALBERTO G. ROBLES, Petitioner,
R.C. SMITH, Warden, and HECTOR BALDERAS, Attorney General for the State of New Mexico, Respondents.
PROPOSED FINDINGS AND RECOMMENDED
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on petitioner Alberto G.
Robles's application for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1), filed August 15, 2016.
Respondents filed their answer to the petition on April 14,
2017. Doc. 7. Mr. Robles filed a reply on April 28, 2017.
Doc. 8. United States District Judge Martha Vazquez referred
this case to me to conduct hearings, if warranted, and to
perform any legal analysis required to recommend to the Court
an ultimate disposition. Doc. 9. Having considered the
parties' submissions, the relevant law, and the record in
this case, I conclude that Mr. Robles included both exhausted
and unexhausted claims in his federal habeas petition.
Therefore, his application must be treated as a mixed
petition. For the reasons discussed below, I recommend that
the Court give Mr. Robles fourteen (14) days after an order
adopting the Proposed Findings and Recommended Disposition
(“PFRD”) to file an amended petition. If he does
not do so, I recommend that his entire petition be dismissed
15, 2008, a jury in the Third Judicial District for the State
of New Mexico found Mr. Robles guilty of second-degree
attempt to commit first-degree murder (Count 1); multiple
counts of first-degree kidnapping (Counts 8-13); multiple
counts of fourth-degree aggravated assault with a deadly
weapon (Counts 14-17); third-degree aggravated battery
(Counts 18-21); and two counts of third-degree intentional
child abuse (Counts 22 and 23). Doc. 7-1 at 1-3. On April 29,
2009, the state district court sentenced Mr. Robles to a term
of 116 years, to be followed by two years on parole.
Id. at 8.
27, 2009, Mr. Robles filed a direct appeal. Id. at
11. In his direct appeal, Mr. Robles argued that he had been
denied a fair trial due to the following: (1) “several
distinct acts of juror misconduct”; (2) “failure
of the state to bring him to trial in a manner dictated by
the constitution” (speedy trial violation); and (3)
“[c]ontinued discovery violations.” Id.
at 17. Appellate counsel subsequently added that trial
counsel was ineffective for failing to explain in the
docketing statement how the alleged juror misconduct error
had been preserved. Id. at 30-31. On July 19, 2010,
the New Mexico Court of Appeals affirmed Mr. Robles's
conviction. Id. at 37-46. Mr. Robles petitioned the
New Mexico Supreme Court for a writ of certiorari, which that
court granted on September 27, 2010. Id. at 47-55,
76-77. However, on November 14, 2011, following briefing, the
New Mexico Supreme Court quashed the writ as
“improvidently granted.” Doc. 7-2 at 36. The New
Mexico Supreme Court issued its mandate to the state district
court on December 6, 2011. Id. at 38.
State Habeas Petition
August 15, 2012, Mr. Robles filed a pro se habeas
petition in state district court. Doc. 7-2 at 39-53. In his
petition, Mr. Robles asserted the following grounds for
relief: (1) ineffective assistance of counsel; (2) due
process violations caused by a “tainted jury”;
(3) prosecutorial misconduct; (4) “abuse of
discretion”; (5) “witness violations”; (6)
and cruel and unusual punishment (in the form of an allegedly
excessive sentence). Id. at 39-40. After Mr. Robles
filed his petition, the state court appointed counsel.
See Doc. 7-2 at 69. Mr. Robles's appointed
counsel chose not to amend Mr. Robles's state habeas
petition. Id. at 64. The state court held an
evidentiary hearing. Id. at 69-72. At the
evidentiary hearing, Mr. Robles's counsel only presented
evidence and argument regarding the ineffective assistance of
counsel claim. Id. at 69. On November 12, 2015, the
state court denied Mr. Robles's habeas petition. See
id. at 69-72. On December 10, 2015, Mr. Robles filed a
petition for writ of certiorari in the New Mexico Supreme
Court. Doc. 7-3 at 1-6. On May 31, 2016, the New Mexico
Supreme Court denied Mr. Robles's petition for writ of
certiorari. Id. at 33.
Petitioner's Section 2254 Claims
Robles filed his federal petition for habeas corpus relief
under 28 U.S.C. § 2254 on August 15, 2016. Doc.
In his petition, Mr. Robles asserts four grounds for relief:
(1) ineffective assistance of counsel; (2) prosecutorial
misconduct; (3) abuse of discretion by the trial court; (4)
“tainted jury-improper jury conduct.” Doc. 1 at
R.C. Smith, Warden, and Hector Balderas, the Attorney General
for the State of New Mexico, contend that Mr. Robles has
filed a mixed petition, containing both exhausted and
unexhausted claims. Doc. 7 at 1. Respondents ask the Court to
either dismiss Mr. Robles's petition without prejudice
for failure to exhaust available state court remedies, or to
direct Mr. Robles to delete his unexhausted claims and
proceed with only those claims that he has properly
exhausted. Id. at 9. I agree that Mr. Robles has
filed a mixed petition. I recommend that the Court allow Mr.
Robles the opportunity to file an amended petition containing
only his exhausted claims.
Exhaustion of State Court Remedies
state prisoner generally must exhaust available state court
remedies before a federal court can consider the
prisoner's habeas petition under 28 U.S.C. § 2254.
See 28 U.S.C. § 2254(b)(1)(A); Hawkins v.
Mullin, 291 F.3d 658, 668 (10th Cir. 2002). “The
[exhaustion] doctrine reflects the policies of comity and
federalism between the state and federal governments, a
recognition that it would be unseemly in our dual system of
government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation.” Demarest v.
Price, 130 F.3d 922, 932 (10th Cir. 1997) (citations and
quotation marks omitted). A federal issue is exhausted if it
“has been properly presented to the highest state
court, either by direct review of the conviction or in a
postconviction attack.” Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)
(citation omitted). In addition, the petitioner must
“fairly present his or her claims to the state courts
before a federal court will examine them, ” which means
that the “substance of the claim” must have been
raised before the state court either on appeal or in
post-conviction proceedings. Demarest, 130 F.3d at
932 (citation and quotation marks omitted). While a
petitioner may present “bits of evidence” to a
federal court that were not presented to the state court,
“evidence that places the claims in a significantly
different legal posture must first be presented to the state
courts.” Id. (citation and quotation marks
omitted). The exhaustion requirement applies to both
unexhausted claims, and portions of claims. Jernigan v.
Jaramillo, 436 Fed.Appx. 852, 855-56 (10th Cir. 2011)
petitions that contain both exhausted and unexhausted claims
are called “mixed” petitions. Pliler v.
Ford, 542 U.S. 225, 227 (2004). Mr. Robles has filed a
mixed petition, as explained more fully below.
Ineffective Assistance of Counsel
Count 1 of his petition in this Court, Mr. Robles alleges
ineffective assistance of trial counsel due to
a. failure to “adequately investigate specific facts
related to case as information was given to him by
b. failure “to seek funding or secure expert witness
testimony to rebut circumstantial an[d] unsubstantiated weak
evidence presented by state witness, including ‘eye
c. failure “to depose, secure aff[i]davits, or subpoena
alibi witness to prove actual innocence of defendant”;
d. failure “to challenge ‘key evidence'
presented by state”; and
e. failure “ to seek mistrial, for improper juror
at 5, 16.
argue that Mr. Robles failed to raise any of these
ineffective assistance of counsel sub-claims in state court.
Doc. 7 at 4. Because Mr. Robles did not raise these
sub-claims in state court, respondents argue that Mr. Robles
has not exhausted state court remedies as to these
ineffective assistance of counsel sub-claims. Id.
Respondents assert that Mr. Robles cannot expand the scope of
his ineffective assistance of counsel claim in federal court.
Id. For the reasons explained below, I agree that
Mr. Robles has failed to exhaust the ineffective assistance
of counsel claims in his habeas petition before this Court.
direct appeal, Mr. Robles made some arguments about
ineffective assistance of counsel, but the arguments were not
the same as those he raises in his petition before this
Court. In his direct appeal, Mr. Robles argued that his trial
counsel, Mr. Daniel Salazar, was ineffective for failing
“to include the required information in his docketing
statement to perfect all the issues raised in [his]
appeal.” Doc. 7-1 at 30. Mr. Robles further argued that
Mr. Salazar failed to “provide the evidence material to
the issues raised in the docketing statement, as required
by” the rules. Id. at 30-31. Specifically, Mr.
Robles argued that Mr. Salazar failed to explain in his
docketing statement how the issue of being denied a fair and
impartial jury was preserved for appeal. Id. at 30.
Mr. Robles urged the New Mexico Court of Appeals to
“adopt a rule finding ineffective assistance of counsel
when trial counsel fails to file a complete docketing
statement or in the alternative grant him full record review
under the General Calendar.” Id. at 32. The
New Mexico Court of Appeals held that “[t]o the degree
that trial counsel has been ineffective in his presentation
of Defendant's claim to this Court and counsel's
ineffectiveness has prejudiced Defendant, Defendant may raise
that argument in any collateral proceeding he wishes to
bring.” Id. at 58-59. Mr. Robles appealed
these same ineffective assistance of counsel claims to the
New Mexico Supreme Court. See Doc. 7-2 at 5-7. After
reviewing the briefs, the New Mexico Supreme Court quashed
its writ of certiorari as “improvidently
granted.” Id. at 36.
state habeas petition, Mr. Robles raised several arguments in
his initial filing. See id. at 39-53. One argument
he raised was that he had had ineffective assistance of
counsel. Id. at 39. In the addendum to his state
habeas petition, Mr. Robles alleged that he gave information
about his alibi witness to Mr. Salazar's investigator,
Mr. Pffefer. Doc. 7-2 at 47. Mr. Robles states that Mr.
Pffefer was supposed to contact him or his family if he had
trouble locating his alibi witnesses. Id. He states
that Mr. Pffefer did not contact him, and that neither his
attorney, Mr. Salazar, nor Mr. Pffefer would accept his calls
when he called to see if they had located his alibi
witnesses. Id. Mr. Robles states that Mr. Pffefer
and Mr. Salazar did not inform him that they had not located
his alibi witnesses until the day before trial, and by then
it was “to[o] late.” Id. These
allegations in Mr. Robles's state habeas petition, while
not identical, are substantively the same as the allegations
he makes in Count (1)(c) above: that his trial counsel was
ineffective due to his failure “to depose, secure
aff[i]davits, or subpoena alibi witness to prove actual
innocence of defendant.” The state court held an
evidentiary hearing on Mr. Robles's habeas petition,
during which Mr. Robles presented evidence and argument
pertaining only to his ineffective assistance of counsel
claim, after which the state court denied Mr. Robles's
petition in its entirety. Id. at 69-72.
Robles petitioned the New Mexico Supreme Court for review of
the state court's denial of his habeas petition. Doc. 7-3
at 1-6. Part of Mr. Robles's petition for writ of
certiorari centered on his ineffective assistance of counsel
claims. Id. at 4-6. But Mr. Robles did not argue in
his petition that trial counsel was ineffective for failing
to locate, depose, secure affidavits, or subpoena his alibi
witnesses. Instead, Mr. Robles “claimed ineffective
assistance of counsel for counsel failing to prepare an
adequate defense and counsel [him] and for failing to call
[him] to testify on his own behalf when [he] informed [trial
counsel] of his desire to do so at trial.” Id.
at 3. More specifically, he argued that
At the evidentiary hearing Mr. Robles testified that he had
no meaningful communication with trial counsel prior to
trial. As well, Mr. Robles testified that he told trial
counsel, after the State rested its case, that he wanted to
testify on his own behalf. If he had testified, Mr. Robles
would have testified he was with friends in Alamogordo on the
date of the alleged crimes and not in Las Cruces where the
alleged crimes occurred. Trial counsel did not call Mr.
Robles to testify. Although Mr. Robles did not protest,
counsel had the duty to counsel Mr. Robles of his right and
consequences of waiving his right to testify.
Id. at 5. Thus, Mr. Robles failed to raise his claim
that his trial counsel was ineffective for failing to locate,
depose, secure affidavits, or subpoena his alibi ...