United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Petitioner Michael
Armendariz' Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”), (Doc. 1), filed
December 7, 2018; Respondents' Answer to Michael
Armendariz's pro se Petition for Writ of Habeas
Corpus (the “Response”), (Doc. 13), filed
April 15, 2019; and Mr. Armendariz' Reply Brief
(the “Reply”), (Doc. 20), filed June 18, 2019. In
addition, Mr. Armendariz filed two supplements in support of
his Petition, (Doc. 5) and (Doc. 8), and Respondents filed
transcripts from the state district court, (Doc. 14). Chief
United States District Judge William P. Johnson referred this
case to the undersigned to perform legal analysis and
recommend an ultimate disposition. (Doc. 21). Having
considered the parties' filings and the relevant law, the
Court RECOMMENDS that Mr. Armendariz'
Petition, (Doc. 1), be GRANTED IN PART and
DENIED IN PART as set forth below.
August 11, 2003, a jury found Mr. Armendariz guilty of:
first-degree murder (willful and deliberate); attempt to
commit first-degree murder; aggravated battery; tampering
with evidence; and possession of a firearm by a felon. (Doc.
13-1 at 1). Mr. Armendariz was sentenced to life imprisonment
plus thirteen years. Id. at 2. These charges arose
from Mr. Armendariz fatally shooting off-duty police officer
Damacio Montano and wounding off-duty police officer Eric
Montano during a fight in the parking lot of a sports bar in
Los Lunas, New Mexico, on October 6, 2002. (Doc. 13 at 2).
The two officers were brothers. Mr. Armendariz alleges the
Montano brothers were beating his friend, Nestor Chavez, and
he claims he shot the men in self-defense and in defense of
Mr. Chavez. Id.
Armendariz filed a direct appeal with the New Mexico Supreme
Court in which he raised two arguments: (1) the trial court
erred by preventing him from introducing evidence of Damacio
Montano's violence against his wife; and (2) Mr.
Armendariz' convictions for both aggravated battery and
attempted murder of Eric Montano violated the prohibition
against double jeopardy. (Doc. 13-1 at 67-103). On August 3,
2006, the New Mexico Supreme Court affirmed Mr.
Armendariz' convictions, holding that the instances of
Damacio Montano's past behavior were not admissible for
the offered purpose and there was no double jeopardy
violation. State of New Mexico v. Armendariz,
2006-NMSC-036, 141 P.3d 526; (Doc 13-1 at 132-157).
6, 2007, Mr. Armendariz filed a pro se state habeas petition,
(Doc. 13-2 at 1-59), which was amended by counsel on July 20,
2010, (Doc. 13-2 at 60-106); (Doc. 13-3); (Doc. 13-4); (Doc.
13-5); and (Doc. 13-6). In the state habeas petition, Mr.
Armendariz raised claims of prosecutorial misconduct,
insufficiency of the evidence, and ineffective assistance of
counsel. (Doc. 13-1 at 4-12); (Doc. 13-2 at 61-105); (Doc
13-3 at 4-33). Specifically, Mr. Armendariz argued the state
engaged in prosecutorial misconduct by: (1) suppressing,
losing, or destroying the original surveillance videotape
from the bar; (2) suppressing and destroying blood evidence;
(3) contaminating the scene of the crime; and (4) planting
evidence. (Doc. 13-2 at 61, 74-87, 100-105). Mr. Armendariz
further argued there was not sufficient evidence to convict
him because: (1) no fingerprint or ballistic testing was done
on the murder weapon; (2) he might not have fired the fatal
bullet; (3) an investigator's analysis indicated the
surveillance video showed something different than what was
presented at trial; (4) the timing of the events shows that
Mr. Armendariz could not have formed the requisite intent to
commit first-degree murder; and (5) panic prevented Mr.
Armendariz from deliberating before firing his weapon. (Doc.
13-3 at 4-14). Finally, Mr. Armendariz argued his counsel was
ineffective because he: (1) failed to adequately investigate
video, blood, and ballistics evidence, and crime scene
procedures; (2) failed to conduct sufficient pre-trial
interviews; and (3) excluded Mr. Armendariz from a conference
where the trial court rejected Mr. Armendariz' request to
fire his counsel. Id. at 14-33.
19, 2018, the state court held a hearing on the issues raised
in Mr. Armendariz' habeas corpus petition at which Mr.
Armendariz and his attorney presented a witness and several
exhibits. (Doc. 13-7 at 100); (Doc. 13-8 at 6). Considering
the pleadings, Mr. Armendariz' offer of proof at the
hearing, and the transcript from the jury trial, the state
court denied Mr. Armendariz' habeas petition, (Doc. 13-8
at 6-16), as well as his motion to reconsider, id.
at 48. Mr. Armendariz then filed a petition for writ of
certiorari with the New Mexico Supreme Court, id. at
49-61, which was denied on November 19, 2018, id. at
December 7, 2018, Mr. Armendariz filed his Section 2254
Petition, raising twelve claims. (Doc. 1). First, he claims
the state violated his constitutional rights by: (1) failing
to preserve blood evidence; (2) losing or destroying the
original surveillance video; (3) contaminating the scene of
the crime; and (4) planting evidence. Id. at 6-8,
9-12, 21-24 (Grounds One, Three, Nine and Ten). Next, Mr.
Armendariz claims his counsel was ineffective for failing to
investigate blood and video-surveillance evidence.
Id. at 8-9, 12 -13 (Grounds Two and Four). He also
claims the trial court erred by: (1) allowing a witness to
narrate a composite surveillance video as it was played for
the jury; (2) holding an important meeting outside of Mr.
Armendariz' presence; and (3) excluding evidence of
Damacio Montano's prior violent conduct. Id. at
14-15, 19-21, 24-26 (Grounds Five, Eight, and Eleven).
Finally, Mr. Armendariz claims: he has new, exculpatory
witness testimony, id. at 15-17 (Ground Six); there
was insufficient evidence to support his conviction for
first-degree murder, id. at 17-19 (Ground Seven);
and his convictions for aggravated battery and attempted
murder violate double jeopardy, id. at 26-27 (Ground
do not dispute that Mr. Armendariz has exhausted available
state court remedies as to all of his claims, and state the
claims may be evaluated on their merits. (Doc. 13 at 5).
However, Respondents contend Mr. Armendariz is not entitled
to relief on his claims. Id. at 9-27.
Governing Law and Standards of Review
pro se litigant's pleadings are to be construed
liberally.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Despite liberal construction of a pro
se litigant's pleadings, however, courts cannot
“assume the role of advocate” for him.
Id. Courts “are not required to fashion [a pro
se party's] arguments for him where his allegations are
merely conclusory . . . and without supporting
fact[s].” United States v. Fisher, 38 F.3d
1144, 1147 (10th Cir. 1994).
28 U.S.C. § 2254, a person in state custody may petition
a federal court for relief on the ground that his detention
violates the United States' Constitution or laws. §
2254(a). A petition under § 2254 may not be granted
unless the state court judgment: (1) resulted in a decision
contrary to or involved an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court; or (2) resulted in a decision based on
an unreasonable determination of the facts in light of the
evidence presented. §§ 2254(d)(1)-(2). Federal
courts must presume factual findings are correct, and a
petitioner must present clear and convincing evidence to
rebut that presumption. § 2254(e)(1).
court decision is “contrary to” clearly
established law if it: (1) “applies a rule that
contradicts the governing law set forth” in Supreme
Court cases; or (2) if it “confronts a set of facts
that are materially indistinguishable” from a Supreme
Court decision and “nevertheless arrives at a result
different from” the Supreme Court decision.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Similarly, a state court decision constitutes an
“unreasonable application” of federal law when a
state “unreasonably applies” Supreme Court
precedent “to the facts of a prisoner's
case.” Id. at 409. The state court decision
must be more than incorrect or erroneous. Renico v.
Lett, 559 U.S. 766, 773 (2010). “Rather, the
application must be ‘objectively
unreasonable.'” Id. (quoting
Williams, 529 U.S. at 409). This imposes a
“highly deferential standard of review, ” and
state court decisions must be given the benefit of the doubt.
Whether Mr. Armendariz is Entitled to Relief Under §
Armendariz claims that the state violated his constitutional
rights by failing to properly handle evidence, (Doc. 1 at
6-8, 9-12, 21-24) (Grounds One, Three, Nine and Ten); his
counsel was ineffective for failing to investigate blood and
video-surveillance evidence, (id. at 8-9, 12-13)
(Grounds Two and Four); the trial court committed errors
which violated his constitutional rights, (id. at
14-15, 19-21, 24-26) (Grounds Five, Eight, and Eleven); he
has new, exculpatory witness testimony, (id. at
15-17) (Ground Six); there was insufficient evidence to
support his conviction for first-degree murder, (id.
at 17-19) (Ground Seven); and his convictions for aggravated
battery and attempted murder violate double jeopardy,
(id. at 26-27) (Ground Twelve). Respondents deny Mr.
Armendariz is entitled to relief on any of these claims. The
Court will address each claim in turn, discussing the
parties' arguments, the state courts' findings and
holdings, clearly established federal law, and whether Mr.
Armendariz is entitled to relief.
Preservation/Destruction of Evidence Claims
Armendariz claims the state violated his constitutional
rights by: (1) failing to preserve blood evidence from Nestor
Chavez's clothing (Ground One); (2) losing or destroying
the original surveillance videotape (Ground Three); (3)
destroying evidence by contaminating the scene of the crime
(Ground Nine); and (4) planting evidence (Ground Ten). (Doc.
1 at 6-8, 9-12, 21-24).
the Due Process Clause of the Fourteenth Amendment, criminal
prosecutions must comport with prevailing notions of
fundamental fairness. California v. Trombetta, 467
U.S. 479, 485 (1984). This standard of fairness requires that
criminal defendants be afforded a meaningful opportunity to
present a complete defense. Id. With respect to the
preservation and destruction of evidence, the government is
required to preserve evidence that might be expected to play
a significant role in the defendant's defense.
Id. at 488. “To meet this standard of
constitutional materiality, evidence must both possess an
exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably
available means.” Id. at 489 (internal
the government has a duty to disclose material, exculpatory
evidence, the issue is different when the government fails to
preserve “potentially useful evidence.”
Arizona v. Youngblood, 488 U.S. 51, 57 (1988)
(citing Brady v. Maryland, 373 U.S. 83 (1963)). In
such cases, a defendant can establish a due process violation
only if he can show that the government acted in bad faith in
failing to preserve the evidence. Id. at 58. The
inquiry into bad faith “must necessarily turn on the
police's knowledge of the exculpatory value of the
evidence.” Id. at 58. However, the “mere
fact that the government controlled the evidence and failed
to preserve it is by itself insufficient to establish bad
faith.” Riggs v. Williams, 87 Fed.Appx. 103,
106 (10th Cir. 2004) (citing Youngblood).
“This is true even if the government acted negligently
. . . or even intentionally, so long as it did not act in bad
Armendariz claims that Nestor Chavez was severely beaten by
the Montano brothers and the state failed to collect and
preserve blood evidence from Mr. Chavez' clothing. (Doc.
1 at 6-7, Ground One); (Doc. 8 at 1). Mr. Armendariz contends
this evidence could have been used to support his defense
that he shot the Montano brothers in defense of Mr. Chavez.
(Doc. 1 at 6-7).
argue there was no dispute at Mr. Armendariz' trial that
there was a “brawl” leading up to the shooting or
that Mr. Chavez was injured and bleeding. (Doc. 13 at 17).
Therefore, Respondents contend the blood evidence would have
been cumulative to the witnesses' testimony and not
particularly useful to the jury in determining whether Mr.
Armendariz acted with deliberate intent instead of in
self-defense or in defense of Mr. Chavez. Id. at
17-18. Moreover, Respondents state Mr. Armendariz has not
made a showing of bad faith which is required for him to
prove a due process violation for potentially useful
evidence. Id. at 18.
Reply, Mr. Armendariz states Damacio Montano's attack on
Mr. Chavez “was what caused the appearance of immediate
danger, death, or great bodily harm to Mr. Chavez and
myself.” (Doc. 20 at 2). He further states
“[e]very witness to the shooting or events immediately
prior to, was either asked to characterize the fight or they
described the fight and were asked to elaborate as to the
characterization.” Id. Therefore, he argues
the blood evidence was needed to resolve the dispute between
the defense's witnesses and the state's witnesses
regarding the severity of the fight. Id. at 3.
considering this claim in Mr. Armendariz' state habeas
petition, the state district court noted that conflicting
evidence was presented at trial regarding whether the Montano
brothers were trying to subdue Mr. Chavez after being
attacked by him, or if they were the aggressors and were
beating him. (Doc. 13-8 at 9, 13). Nevertheless, the state
court found that Mr. Armendariz' claim that the state
failed to collect and preserve blood evidence from Mr.
Chavez' clothing was “full of speculation about
what the police may have done” and has no merit.
Id. at 15.
Petition, Mr. Armendariz does not establish that evidence
from Mr. Chavez' clothing would have changed the outcome
of his trial. Instead, evidence from Mr. Chavez' shirt at
most would have been cumulative to multiple witnesses'
testimony that Mr. Chavez had been beaten and was bleeding.
See, e.g., (Doc. 14-5 at 43-48, 68-74) (testimony
that the Montano brothers attacked and badly beat Nestor
Chavez, Mr. Chavez “had blood all over the front of his
face coming down, ” and Damacio Montano bit Mr. Chavez
in the back). Moreover, Mr. Armendariz does not argue, and
the record does not indicate, that the state acted in bad
faith in failing to preserve evidence from Mr. Chavez'
clothing. The Supreme Court has held that, although the state
has a duty to disclose material exculpatory evidence, for
evidence that “could have been subjected to tests, the
results of which might have exonerated the defendant, ”
the government's failure to preserve does not violate due
process unless a defendant can show bad faith.
Youngblood, 488 U.S. at 58-59 (“Police do not
have a constitutional duty to perform any particular
tests.”). Therefore, the Court finds that the state
court's decision on this claim was consistent with the
components of Youngblood and was not based on an
unreasonable determination of the facts. 28 U.S.C. §
2254(d). Accordingly, the Court recommends this claim be