527 F.3d 1010 (10th Cir. 2008), 05-2129, House v. Hatch

Docket Nº05-2129.
Citation527 F.3d 1010
Party NameGordon HOUSE, Petitioner-Appellant, v. Tim HATCH, Warden,[*] Guadalupe County Correctional Facility, and Attorney General for the State of New Mexico, Respondents-Appellees.
Case DateMay 06, 2008
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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527 F.3d 1010 (10th Cir. 2008)

Gordon HOUSE, Petitioner-Appellant,


Tim HATCH, Warden,[*] Guadalupe County Correctional Facility, and Attorney General for the State of New Mexico, Respondents-Appellees.

No. 05-2129.

United States Court of Appeals, Tenth Circuit.

May 6, 2008

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[Copyrighted Material Omitted]

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William J. Friedman , Esq., Covington & Burling, Washington, D.C., for Petitioner-Appellant.

Steven S. Suttle , Assistant Attorney General, State of New Mexico (Patricia A. Madrid , Attorney General, State of New Mexico, with him on the brief), Albuquerque, NM, for Respondents-Appellees.

Before MURPHY , Circuit Judge, BRORBY , Senior Circuit Judge, and HOLMES , Circuit Judge.

HOLMES , Circuit Judge.

Petitioner-Appellant Gordon House, a member of the Navajo nation, was convicted in Doña Ana County, New Mexico, of driving while intoxicated, vehicular homicide, and various other charges stemming

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from a tragic automobile accident. After exhausting his appeals in the New Mexico state courts, Mr. House filed a petition for habeas relief in the United States District Court for the District of New Mexico pursuant to 28 U.S.C. § 2254 . Based in part on the magistrate judge's findings and conclusions, the federal district court denied his habeas petition. We have jurisdiction to review Mr. House's claims under 28 U.S.C. § 2253 , and we AFFIRM.


Because the state courts described the facts of this case in detail, we only summarize the facts pertinent to our inquiry. On Christmas Eve 1992, while driving east in the westbound lane of Interstate 40 in Bernalillo County, New Mexico, Mr. House collided with an oncoming car. State v. House, 127 N.M. 151, 978 P.2d 967, 972-73 (N.M.1999) (“House I " ). The head-on collision instantly killed Melanie Cravens and her three daughters, and seriously injured her husband, Paul Cravens. Id. at 973. Also injured, Mr. House was taken to the hospital, where his blood-alcohol concentration was measured at 0.18%. Id. Mr. House admitted that during the evening he had consumed seven-and-one-half beers. Id. at 972. Officers arrested Mr. House and he was charged with one count of driving while intoxicated (“DWI" ); one count of reckless driving; one count of great bodily injury by vehicle; and four counts of vehicular homicide, on the alternative theories of DWI and reckless driving. Id. at 973.

The accident and ensuing prosecution received continual and extensive media attention owing to allegations that the prosecution was motivated by Mr. House's ethnicity. See id. at 972, 989-1001 (documenting the extent and nature of the media coverage surrounding Mr. House's prosecution); see also Twohig v. Blackmer, 121 N.M. 746, 918 P.2d 332, 334 (1996) (ruling that gag order prohibiting parties in Mr. House's prosecution from speaking with media was an unconstitutional prior restraint on speech, and quoting Mr. House's counsel as stating, “[I]f Gordon House was not Native American and if the victims were not Anglos, despite tragedy, [this case] would not have received any where near the kind of media attention it has generated." ). Allegations of racial bias reached their pinnacle when the district attorney announced a plan to pursue first-degree, depraved-mind murder charges against Mr. House. Twohig, 918 P.2d at 334. 1 The media attention was so pervasive that the prosecution claimed that the State was having difficulty trying its case. House I, 978 P.2d at 972 .

Due to the extensive publicity, a Bernalillo County district court granted Mr. House's unopposed motion to transfer venue to Taos County. Id. at 974. On June 21, 1994, a jury convicted Mr. House on the misdemeanor charge of DWI, but deadlocked on the remaining counts. Id. After the trial court declared a mistrial, the State filed a motion for a change of venue due to the continuing publicity. Id. Mr. House objected, and the trial court overruled the motion. Id.

On November 7, 1994, a second jury trial began in Taos County. Id. Again, the jury deadlocked in favor of conviction on the vehicular homicide counts and another mistrial was declared. Id. Seeking a third trial, the State moved for a change of venue to Bernalillo County. Id. After

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holding a hearing on the change-of-venue motion, the trial court granted the State's motion for a venue change concluding that local excitement and prejudice generated by the two mistrials and the extensive publicity surrounding the case meant that neither side could get a fair trial. Id. But, after an extensive analysis regarding the best alternative venue, the trial court transferred the case to Doña Ana County rather than Bernalillo County. Id. at 974-75.

Mr. House's third jury trial began on May 5, 1995, and was broadcast nationwide on Court TV. Id. at 975. On May 26, 1995, after deliberating under five hours, the Doña Ana jury convicted Mr. House on all charges: four counts of vehicular homicide (on a DWI theory); four counts of vehicular homicide (on a reckless driving theory); one count of great bodily injury by vehicle (DWI); and one count of great bodily injury by vehicle (reckless driving). Id. On July 24, 1995, the trial court sentenced Mr. House to a prison term of twenty-five years, suspending three of those years. Id.; see State v. House, 130 N.M. 418, 25 P.3d 257, 260 (Ct.App.2001) (“House II " ).2 The New Mexico Supreme Court affirmed Mr. House's conviction. House I, 978 P.2d at 998 .

While his case was on direct appeal, the New Mexico Court of Appeals issued an opinion holding that, under constitutional double jeopardy principles, vehicular-homicide convictions could not be imposed on alternative theories for the same deaths. See generally State v. Landgraf, 121 N.M. 445, 913 P.2d 252, 262 (1996) . After the New Mexico Supreme Court denied a writ of certiorari the following month, Landgraf became final and binding. Consequently, the trial court resentenced Mr. House, vacating the four vehicular homicide counts predicated on a reckless-driving theory, but leaving the twenty-five-year sentence intact. See House II, 25 P.3d at 261. Mr. House appealed. The New Mexico Court of Appeals upheld his sentence, id. at 267, and the New Mexico Supreme Court denied a writ of certiorari.

While his sentencing appeal was pending, Mr. House filed a petition for habeas relief in the United States District Court for the District of New Mexico. The federal district court dismissed the petition without prejudice because Mr. House had not exhausted his state court remedies. At the conclusion of state proceedings, Mr. House filed a second petition for habeas relief.

The magistrate judge recommended denying Mr. House's petition on the merits. Although the district court only partially adopted the magistrate judge's findings and conclusions, it reached the same result, denying on the merits Mr. House's petition for habeas relief. Mr. House appealed and, on July 25, 2005, the district court issued a certificate of appealability.


“ ‘In an appeal of the dismissal of a federal habeas corpus petition, we review a

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district court's findings of fact for clear error and its conclusions of law de novo.’ " Maynard v. Boone, 468 F.3d 665, 669 (10th Cir.2006) (quoting Robinson v. Golder, 443 F.3d 718, 720 (10th Cir.2006) , cert. denied, __ U.S. __, 127 S.Ct. 166, 166 L.Ed.2d 118 (2006) ), cert. denied, __ U.S. __, 127 S.Ct. 1819, 167 L.Ed.2d 328 (2007) . The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA" ) establishes the requirements for granting a writ of habeas corpus:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (emphasis added). Subsection (d)(1) governs claims of legal error while subsection (d)(2) governs claims of factual error. See Maynard, 468 F.3d at 669 .

A. Section 2254(d)(1)

1. Clearly established law

The AEDPA “requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state court conviction became final." Williams v. Taylor, 529 U.S. 362, 380, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) . Whether the law is clearly established is the threshold question under § 2254(d)(1) . Id. at 390, 120 S.Ct. 1495 (emphasis added); see also Yarborough v. Alvarado, 541 U.S. 652, 660, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (the analysis “begin[s] by determining the relevant clearly established law" ). Clearly established law is determined by the United States Supreme Court, and refers to the Court's “holdings, as opposed to the dicta." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal quotation marks omitted) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). The law is not clearly established if it announces “[a] rule that ‘breaks new ground or imposes a new obligation on the States of the Federal Government.’ " Williams at 381, 120 S.Ct. 1495 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ).

The Court recently clarified at least two significant issues that were raised by federal court application of the Williams analytic framework. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) .3 First, Musladin instructed that Supreme Court holdings-the exclusive touchstone for clearly established federal...

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