United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
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.
Background Facts and Procedural Posture
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,
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.
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.
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.
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. See Wilson v. Sellers, 138
S.Ct. 1188, 1192 (2018).
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.” 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.
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.
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).
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. §
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)).
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).
“[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)).
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.
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.”
Motion for Appointment of Counsel
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.
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.
Exhaustion and Procedural Default
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.