Maes v. Thomas, 93-2237

• Decision Date: 23 January 1995
• Docket Number: No. 93-2237,93-2237
• Citation: 46 F.3d 979
• Parties: Eddie MAES, Petitioner/Appellant, v. John THOMAS, Warden; and Attorney General of the State of New Mexico, Respondents/Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 979

46 F.3d 979

Eddie MAES, Petitioner/Appellant, v. John THOMAS, Warden; and Attorney General of the State of New Mexico, Respondents/Appellees.

No. 93-2237.

United States Court of Appeals Tenth Circuit.

Jan. 23, 1995.

Tova Indritz, Federal Public Defender, Albuquerque, NM, for petitioner/appellant.

Margaret E. McLean, Asst. Atty. Gen., Santa Fe, NM (Tom Udall, Atty. Gen., Santa Fe, NM, with her on the brief), for respondents/appellees.

Before MOORE and BARRETT, Circuit Judges, and ROGERS, ^* Senior District Judge.

ROGERS, Senior District Judge.

Eddie Maes, a New Mexico state prisoner, appeals the district court's denial of his petition for habeas corpus brought pursuant to 28 U.S.C. Sec. 2254. Maes was convicted of two counts of second degree murder and one count of felon-in-possession of a firearm. He raises three issues on appeal: (1) whether the trial court erred when it failed to instruct the jury on a "concerted attack" theory of self-defense; ¹ (2) whether the district court erred in holding that he had procedurally defaulted his claim that the trial court had erred in prohibiting evidence that one of the victims had been on probation for a violent crime; and (3) whether there was sufficient evidence of guilt.

I.

The instant convictions arose from an incident that occurred on March 8, 1989. On that day, Maes, a brother and a friend began drinking alcohol in the morning. Later in the day, they ended up at an old dump where they met three of their friends, Leo Leyba, Kenneth Garcia, and Clyde Leyba. All six were drinking alcohol and some were smoking marijuana. They spent some time arm wrestling and roughhousing. Fistfights and arguments were not uncommon when these young men got together and were drinking. Esmeraldo Martinez, a 43-year-old man who lived in a house next to the dump, arrived in his pick-up truck and invited everyone over to his house in an effort to stop the arguing and fighting. Martinez had known these younger men all his life. At some point, Maes obtained a rifle from Martinez' truck and fired two shots. One of the shots struck and killed Leo Leyba, and the other struck and killed Kenneth Garcia. The events immediately prior to the shooting and the circumstances of the shootings were disputed. Following the shootings, Maes gave the gun to Martinez, got in his vehicle with his brother and friend, and drove to the local sheriff's office where he turned himself in.

On March 22, 1989, Maes was charged with two counts of first degree murder, one count of assault with a deadly weapon, and one count of felon-in-possession of a firearm. On July 20, 1989, following a five-day trial, the jury found Maes guilty of two counts of second degree murder and one count of felon-in-possession of a firearm. The jury acquitted Maes of the aggravated assault charge.

Maes appealed his convictions to the New Mexico Court of Appeals (NMCOA). The original docketing statement filed by his counsel listed six issues on appeal. For the purpose of this appeal, we need only consider two of the issues. Maes contended that the trial court erred in (1) excluding any mention of Leo Leyba's probation for a felony conviction, and (2) denying certain defense jury instructions. The docketing statement contained the following argument on the jury instructions issue:

The court denied defendant's tendered instructions 8, 9, 10 and 11. The defendant's instructions would have allowed for self defense when not only the victim but a second assailant approached the defendant. The Court allowed only the threatening conduct of the victim in question to be considered by the jury.

Just as the concept of transferred intent applies to a defendant who shoots at one and kills another, so should the same concept apply to self defense. Such procedure violated defendant's Fifth, Sixth, Fourteenth Amendments to the U.S. Const. and Art II Sec. 14 and 18 of the N.M. Const.

In response to the docketing statement, the NMCOA issued a calendar notice which assigned the case to the summary calendar and proposed summary affirmance. ² As to the probation issue, the NMCOA found that Maes had not specified the "type of felony conviction Leyba was on probation for and what connection, if any, that fact had to defendant's fear and belief he had to defend himself." As to the jury instruction issue, the NMCOA determined that review of this issue was not necessary because the defendant had not cited any authority for its argument that the concept of transferred intent should apply to self-defense.

Maes then filed a motion to amend the docketing statement and a memorandum in opposition to summary affirmance. Maes, through appellate counsel, sought to amend the docketing statement to indicate that "the victim was on probation for a violent crime, probably aggravated battery." He also sought to clarify the jury instructions argument as follows:

The docketing statement describes the issue as one of transferred intent and self-defense. However, conversations with trial counsel made clear that the phrase "transferred intent" misdescribes the argument of the defense at trial. This memorandum accurately describes the argument.

The memorandum went on to delineate the trial court's error as a failure to allow instructions on a "concerted attack" theory of self-defense. Maes argued that the court should have allowed the jury to consider whether the "concerted action" of Leyba and Garcia caused him to be placed in apparent danger of immediate death or great bodily harm.

A second calendar notice denied the motion to amend and proposed summary affirmance of Maes' convictions. Maes filed a second memorandum in opposition to summary affirmance. A third calendar notice assigned the case to the general calendar. As a result of the third calendar notice, Maes filed his brief-in-chief. This brief raised only two issues: the jury instructions argument and a jury composition argument. In response to Maes' brief, the State recognized that the defendant was raising the issue of the trial court's failure to instruct on a concerted action theory of self-defense. The State made the following admission:

The State acknowledges any issue concerning the self-defense jury instructions was preserved. The Defendant tendered jury instructions and argued the position to the trial court.

The NMCOA did not address the merits of the probation claim because it found that the petitioner had waived the claim by not raising it in his brief-in-chief. The NMCOA further determined that it need not reach the jury instructions argument because it was "not raised or preserved below" and the issue did not raise a fundamental error. The NMCOA stated: "Both the language of the tendered instructions and the arguments made to the trial court support a conclusion that the court was requested to instruct the jury to consider whether there was an appearance of danger based on the attack of one or the other of the victims rather than a joint attack by both victims." The NMCOA went on to conclude that the defendant also was not entitled to any relief based upon a plain error analysis. The NMCOA affirmed Maes' convictions.

Maes filed a writ of certiorari with the New Mexico Supreme Court in which he again argued only the two issues raised in his brief-in-chief. The New Mexico Supreme Court denied Maes' writ on June 22, 1990. Maes then filed a state petition for writ of habeas corpus in which he raised the same issues as those raised in this case. The trial court summarily dismissed the habeas petition. Maes sought review by the New Mexico Supreme Court by filing a writ of certiorari. The petition for writ of certiorari was denied.

Maes filed the instant writ of habeas corpus with the United States District Court for the District of New Mexico on June 20, 1991. The writ was assigned to a magistrate for further proceedings. After examination of exhaustive briefs, the magistrate, in a thorough opinion, dismissed Maes' writ. As to the jury instructions issue, the magistrate found that the record supported the NMCOA's conclusion that the "concerted attack" theory of self-defense had not been raised at trial. The magistrate, however, determined that this issue had not been procedurally defaulted because the NMCOA had considered the claim under a plain error analysis. In moving to the merits of the issue, the magistrate decided that Maes' due process rights had not been violated by the trial court's refusal to instruct on the "concerted attack" theory of self-defense. ³ As to the probation argument, the magistrate concluded that Maes had procedurally defaulted on the issue because he had failed to raise the issue in his appellate brief before the NMCOA. Finally, as to the sufficiency of evidence issue, the magistrate determined that sufficient evidence existed in the record to establish that Maes did not act in self-defense when he killed Leyba and Garcia. Maes filed objections to the findings of the magistrate. The State failed to file any objections.

The district court adopted the findings and recommended disposition of the magistrate's order. This appeal followed.

II.

The court shall turn initially to the jury instructions argument. The respondent raises two arguments in defending this claim. First, the respondent contends that Maes failed to tender this defense during the trial. Second, the respondent argues that the petitioner's due process rights were not violated by the refusal to give a concerted attack instruction.

The court is troubled by the procedural background of this issue. At the conclusion of the trial, the petitioner's attorney tendered a self-defense instruction which provided in pertinent part: "The killing is self-defense if: 1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of Leo Leyba approaching with a knife or Kenneth Garcia approaching with a chain." In arguing the instructions at trial, petitioner's counse...