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Robles v. Smith

United States District Court, D. New Mexico

June 10, 2019

ALBERTO G. ROBLES, Petitioner,
v.
R.C. SMITH, Warden, and HECTOR BALDERAS, Attorney General for the State of New Mexico, Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS 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 without prejudice.

         I. Procedural Background

         On May 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.

         A. Direct Appeal

         On May 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.

         B. State Habeas Petition

         On 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.

         C. Petitioner's Section 2254 Claims

         Mr. Robles filed his federal petition for habeas corpus relief under 28 U.S.C. § 2254 on August 15, 2016. Doc. 1.[1] 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 5-11, 16.

         Respondents 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.

         II. Exhaustion of State Court Remedies

          A 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) (unpublished).

         Habeas 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.

         A. Ineffective Assistance of Counsel

         In Count 1 of his petition in this Court, Mr. Robles alleges

         (1) ineffective assistance of trial counsel due to

a. failure to “adequately investigate specific facts related to case as information was given to him by defendant”;
b. failure “to seek funding or secure expert witness testimony to rebut circumstantial an[d] unsubstantiated weak evidence presented by state witness, including ‘eye witness' testimony”;
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 issues.”

         Doc. 1 at 5, 16.

         Respondents 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.

         In his 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.

         In his 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.

         Mr. 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 ...


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