Blake v. Janecka, 082515 FED10, 14-2053

Docket Nº:14-2053
Party Name:PRESTON J. BLAKE, Petitioner - Appellant, v. JAMES JANECKA, Warden; GARY K. KING, New Mexico Attorney General, Respondents - Appellees.
Judge Panel:Before PHILLIPS, BALDOCK, and EBEL, Circuit Judges.
Case Date:August 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

PRESTON J. BLAKE, Petitioner - Appellant,


JAMES JANECKA, Warden; GARY K. KING, New Mexico Attorney General, Respondents - Appellees.

No. 14-2053

United States Court of Appeals, Tenth Circuit

August 25, 2015

(D.C. No. 2:13-CV-00454-LH-KBM) (D.N.M.)

Before PHILLIPS, BALDOCK, and EBEL, Circuit Judges.



Petitioner Preston Blake is currently incarcerated in a state prison in Santa Rosa, New Mexico. Blake was convicted of burglarizing the home of an elderly woman and was sentenced to 41 years in prison following a New Mexico state court jury trial. After failing to obtain relief from his conviction and sentence in state court, Blake filed a 28 U.S.C. § 2254 habeas application in the United States District Court for the District of New Mexico, asserting, among other things, claims of ineffective assistance of counsel and the introduction at trial of custodial statements in violation of Edwards v. Arizona, 451 U.S. 477 (1981). The magistrate judge recommended that Blake's petition be denied. Blake objected to the recommendation, but the district court adopted the recommendation in full and denied the petition. The district court also denied Blake a Certificate of Appealability ("COA") for all of his claims. Blake then sought from this court a COA, and we granted one concerning two of the 15 issues he raised: (1) whether Blake is entitled to relief on a claim of ineffective assistance of counsel for Blake's appointed counsel's failure to investigate his alibi witness's story; and (2) whether Blake is entitled to relief on a claim of a violation of his Edwards rights due to the introduction of statements he made to police after officers allegedly denied his requests for counsel.

Blake now raises these two issues, and also seeks to expand his COA. Exercising jurisdiction under 28 U.S.C. § 2253, we affirm the district court regarding the two issues Blake brings before us.

We also deny Blake's motion to expand his COA and grant the state's motion to deny the expansion. Given this determination, we need not rule on the state's motion to strike the motion to expand the certificate of appealability.


A. Factual Background

Blake's imprisonment stemmed from the burglary of 82-year-old JoAnn Vickers's home on March 31, 2008, in Portales, New Mexico.1 At about 11:00 p.m., Vickers heard her doorbell ring but, after looking through her window, saw no one outside of her home. While attempting to fall back asleep, she heard noises outside her house and got out of bed to investigate. When she was walking down the hallway, two men appeared, pushed her down, and began to kick her.

Vickers could not see either man's face because it was dark, but she noted that they carried blue and white flashlights that they shone in her eyes while repeatedly telling her to keep her eyes closed. Vickers heard the burglars going through boxes and drawers in her bedroom, searching for jewelry. She believed she also heard the burglars speaking to a third burglar inside the house, although she never saw anyone else. Once the burglars left, Vickers-who suffered a broken hip in the attack- managed to summon her neighbor, Theta Ainsworth, who called 911.

Two days after the burglary, Blake and his step-brother, J.B. Stuart (accompanied at one point by Stuart's girlfriend, Rose Peretti), went to two different stores in Portales-Woody's Jewelry and SOS Pawnshop-and attempted to sell some loose diamonds.2 At Woody's, Blake told an employee that the diamonds had come from his grandfather. At SOS, an employee testified that Blake instead had said that the diamonds were left over from a ring his mother was making, and that she had given them to him. Law enforcement had informed stores in the area about the burglary and asked them to be on the lookout for people attempting to sell certain items of jewelry. Based on these warnings, employees from both shops called the police and alerted them to the attempted sales. Barbara Ortiz, an SOS Pawnshop employee, described for police the car she saw Blake and Stuart leave in and gave them its license plate number.

Based on Ortiz's description and the license plate number, police located the car in front of Blake's house about two hours later. When they knocked on the door to the house and were let inside, officers recognized Blake, Stuart, and Peretti from a surveillance video that Woody's Jewelry had provided. The officers detained Blake, Stuart, and Peretti and brought them to the police department for questioning.

At the police department, Detective Tom Moore questioned Blake. Detective Moore testified at trial-without objection from Blake-that he had advised Blake of his rights and Blake had agreed to talk to him. Detective Moore testified that Blake gave inconsistent statements, first claiming he did not know where the diamonds had come from but later claiming they had come from his deceased grandmother. Blake volunteered that he had the diamonds at his house, signed a consent form for Detective Moore to go to his house and retrieve the diamonds, and accompanied Detective Moore back to the house. Blake took Detective Moore to a bedroom that he shared with his girlfriend and showed him the diamonds, which were on a dresser. Officers also noted a small black flashlight on Blake's dresser. When officers later executed a search warrant at Blake's residence, they also found a Crown Royal bag behind a picture frame on the same dresser-the same brand of bag Ms. Vickers had kept some of her jewelry in-containing some of Vickers's jewelry, as well as two of Vickers's earrings on another table in the same bedroom.

Later that day, officers brought Blake and Stuart back to the police department for further questioning. During this session, Sergeant Brad Raines questioned Blake. Sergeant Raines testified-again, without objection from Blake-that he had advised Blake of his rights and that Blake had agreed to speak with him. Sergeant Raines testified that Blake had told him the same story he had told Detective Moore earlier that day, in the same sequence: he first denied any knowledge about the diamonds, but then said they were handed down from a grandmother. Based on his training and experience, Sergeant Raines also testified that Blake evinced signs of deception during his interrogation.

The police also questioned Stuart when they brought him and Blake to the police department. Sergeant Raines initially questioned Stuart, and Stuart told Sergeant Raines that he, Blake, and Joel Zertuche had found the loose diamonds in a pillowcase in an alley by a trash can. Stuart testified that, later that day, he told Sergeant Raines the truth-that he, Blake, and Zertuche had been the burglars at Vickers's home-because he felt guilty about the injuries they inflicted on Vickers during the burglary.

The police eventually arrested Blake and Stuart. Blake was charged with aggravated burglary, conspiracy to commit aggravated burglary, possession of stolen property valued at more than $2500, tampering with evidence, and two counts of receiving stolen property.3

Jennifer Burrill initially represented Blake before and at trial. After the state's first witness finished testifying, Burrill informed the state court judge that Blake wished to proceed pro se for the rest of trial. The court thoroughly reviewed the counsel-waiver procedures with Blake and determined that Blake had waived his right to counsel knowingly, intelligently, and voluntarily. The judge asked that...

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