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Foster v. Smith

United States District Court, D. New Mexico

June 19, 2019

RAYMOND SMITH, Warden and HECTOR BALDERAS, Attorney General for the State of New Mexico, Respondents.


         THIS MATTER comes before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1) and the Supplement (Doc. 6) and Supplemental Amendment (Doc. 7), filed by Scott Allen Foster (“Petitioner”) on May 7, 2018, June 4, 2018 and August 13, 2018, and fully briefed on January 18, 2019 (Doc. 15). The Honorable James O. Browning referred this case to me to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 4. Having reviewed the submissions of the parties and the relevant law, the Court recommends that the Petition be denied on its current record.[1]

         I. Background Facts and Procedural Posture

         Petitioner is in state custody pursuant to the Amended Judgment, Sentence, and Order Determining Habitual Offender Status, which was filed October 27, 2014, in the Ninth Judicial District Court, Curry County, New Mexico. See Doc. 14, Ex. B. Following a one-day trial on June 20, 2014, a jury found Petitioner guilty of first-degree trafficking in controlled substances (Count 1) and second-degree conspiracy to commit trafficking in controlled substances (Count 2). Id. at 1. These counts arose during an undercover narcotics investigation conducted by Phil Caroland, a Curry County Sheriff's Deputy at the time, which targeted the sale of crack cocaine in Clovis, New Mexico. Doc. 14-4, Ex. BB, at 196. During the investigation, a confidential informant, Michael Robinson, and an undercover police officer, Kandi Garcia, conducted approximately 75 controlled buys of illegal drugs. See Id. at 196-97. One such buy took place on November 16, 2012, when Robinson and Officer Garcia entered a house located at 1113 W. 10th Street, where Petitioner was present, to purchase cocaine. Id. at 203, 215. During the transaction, Officer Garcia was equipped with a video recording device; however, the recording suffered from poor sound quality and the conversations, largely, could not be understood. Id. at 204, 217, 218. Upon emerging from the home at 1113 W. 10th Street, Officer Garcia and Robinson returned to the police station, where they produced a substance which was ultimately determined to be 8/10 of a gram of crack cocaine. Id. at 179-82, 204-05.

         Deputy Caroland was married to Monica Caroland, a lawyer who worked in the law office of Petitioner's trial attorney, Randall Harris, at the time of the November 16, 2012 controlled buy. See Doc. 1-1 at 28. Mrs. Caroland left Mr. Harris's firm in December 2012, however, well before Mr. Harris entered his appearance for Petitioner in April 2013. See Id. at 27-28, 82; Doc. 14-6 at 108. Deputy Caroland testified that he did not have access to any information concerning the investigation or prosecution of Petitioner by virtue of his wife's employment at the Harris Law Firm. Doc. 1-1 at 29. Although Deputy Caroland was sworn in by the Curry County Sheriff as a certified police officer, he later learned that a clerical error resulted in his commission card not being properly filed. Id. at 29-30.

         Petitioner appealed his drug trafficking convictions. Doc. 14-1, Ex. C & Ex. D. On September 16, 2015, the New Mexico Court of Appeals proposed summary affirmance as to the four issues he raised but proposed reversal of his conspiracy conviction, asking sua sponte (1) whether convictions for drug trafficking and conspiracy to commit drug trafficking, which arise from a single transaction, violate double jeopardy; and (2) whether Petitioner had been illegally sentenced. Doc. 14-1, Ex. F. Ultimately, after considering memoranda of the parties, the Court of Appeals affirmed the trial court in an April 18, 2016 Memorandum Opinion. Doc. 14-1, Ex. K. On June 10, 2016, the New Mexico Supreme Court denied a petition for certiorari. Doc. 14-1, Ex. O.

         Mr. Harris died on March 2, 2015. Doc. 14-6, Ex. DD. Thereafter, on August 10, 2015, Petitioner's new attorney filed a state petition for writ of habeas corpus, alleging that Mr. Harris's representation was constitutionally defective because he: (1) was impaired by a drug and alcohol habit throughout the course of the representation; (2) failed to disclose the “irreconcilable conflict” created by his employment of Monica Caroland; (3) failed to show that Deputy Caroland and Officer Garcia lacked the proper appointment as commissioned law enforcement officers; (4) failed to move for disclosure of Officer Garcia's supplemental report; and (5) failed to take certain actions with respect to the confidential informant, Michael Robinson. Doc. 14-2, Ex. Q. The state district court denied the petition. Doc. 14-6, Ex. DD.

         Petitioner sought a writ of certiorari from the New Mexico Supreme Court on the following issues: (1) whether trial counsel Mr. Harris was ineffective due to an impairment; (2) whether Mr. Harris was operating under an irreconcilable conflict; and (3) whether Deputy Caroland was acting without lawful authority. See Doc. 14-6, Ex. HH. The New Mexico Supreme Court denied the petition for writ of certiorari by Order, without discussion, on February 15, 2018. Doc. 14-6, Ex. II. Because the Supreme Court's Order did not include any discussion or rationale, the Court is left to consider, for purposes of its § 2254 analysis, the rationale supplied by the state trial court.[2] See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         Petitioner filed his federal habeas petition on May 7, 2018. Doc. 1. Parroting many of the factual and legal assertions offered by counsel in his state habeas petition and on direct appeal, Petitioner enumerates the following grounds for relief: (1) “Defense counsel Randall Harris [sic] impairment when representing Petitioner”; (2) “Convicted Felon Michael Robison [sic]”; (3) “Randall Harris's undisclosed irreconcilable conflict”; (4) “Lack of proper appointments of Phil Caroland and Kandi Garcia as commissioned law enforcement officers”; (5) “Double Jeopardy”; and (6) “Illegal Enhancement.”[3] Additionally, Petitioner alleges the grounds of “Undercover Sting Operation” and “Additional acts showing innefective [sic] assistance of counsel” in his Petition (Doc. 1 at 14), but the Court finds that these grounds are better addressed in conjunction with his other ineffective assistance of counsel claims, rather than as distinct grounds.

         Petitioner filed his Petition after April 24, 1996; thus, it is subject to the terms of the Antiterrorism and Effective Death Penalty Act (“the AEDPA”). For purposes of the “in custody” requirement of 28 U.S.C § 2254, Respondents concede that Petitioner was in custody at the filing of the Petition and the Answer. Doc. 14 at 5.

         II. Legal Standard

         Federal courts have statutory authority under Section 2254, as amended by AEDPA, to issue habeas corpus relief for persons in state custody. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011). AEDPA “circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings, ” subject to only two exceptions. Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012).

         A federal court may grant relief from a state court decision only where a petitioner demonstrates that the trial court's resolution of his claims was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)). In analyzing the state court's decision, this Court may only review the record that was before the state court and all factual findings are presumed correct unless rebutted by “clear and convincing evidence.” Id. (quoting 28 U.S.C. § 2254(e)).

         Under Section 2254(d)(1), the threshold question asks whether the applicant is seeking to invoke a rule of law that was clearly established by the Supreme Court at the time the conviction became final. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011) (citation omitted); see also Williams v. Taylor, 529 U.S. 362, 390 (2000). If the law was clearly established, then the court determines whether the state court decision was “contrary to or involved an unreasonable application of that clearly established law.” Byrd, 645 F.3d at 1165 (quoting Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th Cir. 2004) (internal quotations omitted)).

         First, a state-court decision is “contrary to” clearly established law “if the state court applies a rule different from the governing law set forth” by the Supreme Court or “if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Hooks, 689 F.3d at 1163 (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The state court is not required to cite to, or even be aware of, Supreme Court decisions, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).

         Second, “[a] state-court decision is an ‘unreasonable application' of clearly established federal law when the state court ‘identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case.'” Hooks, 689 F.3d at 1163 (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). AEDPA precludes issuance of a writ simply because the federal court concludes in its independent judgment that the state court applied the federal law erroneously or incorrectly. Byrd, 645 F.3d at 1166. Instead, the application must also be “objectively unreasonable.” Id. As long as “fairminded jurists could disagree” as to the correctness of the state court's decision, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), this “‘highly deferential standard for evaluating state-court rulings[ ]' . . . demands that state-court decisions be given the benefit of the doubt.” Hooks, 689 F.3d at 1163 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         Even if a federal habeas court finds that the state court decision was contrary to or an unreasonable application of clearly established federal law, habeas relief may not issue unless the violation is of a sort that warrants such relief. See e.g., Williams, 529 U.S. at 375 (“It is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas.”); Wilson v. Sirmons, 536 F.3d 1064, 1073 (10th Cir. 2008) (“If we find that the state court erred, we still must determine whether the error is a structural defect ‘in the constitution of the trial mechanism, which def[ies] analysis by “harmless-error” standards.'”) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)), rehearing en banc granted on separate issue, 549 F.3d 1267 (10th Cir. 2008).

         Finally, because Petitioner is proceeding pro se, the Court construes his pleadings liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). The Court will not, however, “take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id.

         III. Motion for Appointment of Counsel

         Along with his original Petition, Petitioner filed a Motion for Appointment of Counsel. Doc. 3. On January 29, 2019, this Court denied that motion, noting that it is generally unnecessary to appoint counsel before a case has reached the stage of the proceedings where an evidentiary hearing may be required. Doc. 16. Accordingly, the Court characterized Petitioner's request for appointment of counsel as premature, denying it without prejudice. Id.

         The Court has now had the opportunity to consider the merits of the Petition as well as Respondents' Answer. Because it determines herein that the Petition is without merit and that no evidentiary hearing is required, it likewise finds that it is unnecessary to revisit its previous decision to deny the appointment of counsel in this case.

         IV. Discussion

         A. Exhaustion and Procedural Default

         The petitioner in a habeas action brought pursuant to 28 U.S.C. § 2254 must establish that he has properly exhausted available state-court remedies by raising his federal claim or claims in the state's highest court, either by direct review or in post-conviction proceedings. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th. Cir. 1994). Respondents concede that Petitioner's claims have been properly exhausted in the state courts and are ripe for review, save one claim. See Doc. 14 at 4-5. ...

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