Church v. Sullivan

Decision Date26 August 1991
Docket NumberNo. 89-2266,89-2266
Citation942 F.2d 1501
PartiesBrian A. CHURCH, Petitioner-Appellant, v. George E. SULLIVAN, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Margaret McLean, Asst. Atty. Gen., Santa Fe, N.M. (Hal Stratton, Atty. Gen., with her on the brief), for respondent-appellee.

Before HOLLOWAY, Chief Judge, ALDISERT * and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

Petitioner Church appeals an order of the district court, denying with prejudice his petition for a writ of habeas corpus sought pursuant to 28 U.S.C. § 2254. Church seeks habeas relief following his conviction on a jury verdict in Hidalgo County, New Mexico, as an accessory to an armed robbery in violation of N.M.Stat.Ann. §§ 30-16-2, 30-1-13 (1978). 1 We reverse the district court's determination that a procedural bar precluded habeas review of some of Church's claims; we remand for an evidentiary hearing on Church's Sixth Amendment ineffectiveness of counsel claim and his due process claim of jury misconduct; we affirm the remaining decisions on Church's claims.

I. Factual and Procedural Background

On the evening of June 13, 1985, three individuals were involved in the robbery of an elderly couple, Virginia and Carl Wilson, at the couple's home near Lordsburg, New Mexico. According to the Wilsons, one of the robbers was a man who had arrived at their home two or three days earlier requesting water for his overheated engine. Carl Wilson had accompanied the man to a jeep and then returned home without incident. The man, later identified as codefendant Ray Hernandez, was described by the Wilsons as a Hispanic man with a fu-manchu mustache.

On the evening of the robbery, Hernandez returned to the Wilson home with a woman, later identified as Kimala Bailey. Under the pretext of a courtesy visit to introduce "his wife," Hernandez and Bailey entered the Wilson home, whereupon Hernandez pulled a pistol on the Wilsons. After taping the Wilsons' hands and feet, Hernandez demanded to know where they kept their turquoise and gold. Virginia Wilson turned over a box containing unprocessed gold and some old coins. Hernandez then blindfolded the Wilsons. The house was searched for valuables, and in addition to the gold and coins, cash and jewelry were taken. At some time during this search, Virginia Wilson detected through her blindfold the presence and shape of a third robber whom she heard whispering to the other two. She described the third robber as male, short and slender. The robbers left the Wilsons tied up on their beds. While leaving the Wilsons' driveway, the robbers' vehicle knocked over a post and small tree. The Wilsons later freed themselves and summoned the police.

At the crime scene Hidalgo County Sheriff Darnell observed and photographed three sets of footprints in the Wilson driveway. During his investigation over the next few days, Darnell, along with state policeman French, encountered Bailey and her boyfriend, Kelly Green, living at a campsite in the nearby Burro Mountains. Bailey told Darnell that on the day of the robbery a man named Brian driving a yellow jeep with a passenger named Hernandez had stopped at their campsite. At the mention of the jeep, French recalled that on June 1st, two weeks before the robbery, he had observed two men and a yellow jeep parked along a dead end road, less than a mile from the Wilson home. French had run and filed a registration check on the jeep. It was registered to Church and his fiance, Laura Wilson. 2 Subsequently Darnell also learned that on the evening of June 12th, another police officer had seen a yellow jeep with a black top, registration unknown, standing empty on the same road, within a quarter mile of the Wilson home.

Using the registration address, Darnell phoned the Ruidoso police and asked them to locate Church and Laura. The two agreed to come into the Ruidoso police station, and at Darnell's request, they were fingerprinted and photographed. Over the phone, Church told Darnell that he had been prospecting in the Lordsburg area, but knew nothing about a robbery or a Hispanic man with a fu-manchu mustache. Darnell returned to the campsite and photographed Green and Bailey. He also compared Bailey's footprints to those photographed at the Wilson home and found them to be similar.

After seeing Bailey's photo, the Wilsons identified Bailey as the woman who robbed them. Darnell brought Bailey and Green into the station. Bailey confessed, implicating herself, Hernandez and Church. In her statement, Bailey said that on the morning of the robbery, she and Green had first met Hernandez and Church, who arrived at the campsite looking for an old prospecting claim belonging to Church's grandfather. According to Bailey, the two drove off in the jeep, but returned later for dinner. She said that after dinner, Church and Hernandez recruited her to help rob the Wilsons. Green refused to participate and stayed behind. Bailey said that during the robbery, Church waited in the jeep outside until the Wilsons were blindfolded, but then entered and did most of the searching. After Bailey finished her statement, Green turned over to the police the two jackets which the Wilsons had identified as being worn by the man and woman entering their home. Green also gave the police the Wilsons' gold and coin box. On this information, Church was arrested and his jeep was impounded.

Darnell came to see Church in the Ruidoso jail on July 7, 1985. Church was given Miranda warnings and he agreed to talk with Darnell. Although he initially denied involvement in the robbery, later that evening he requested that Darnell return to the jail. Darnell agreed to allow Church to speak with Laura at their home, after which Church made a taped statement confessing his participation as the third robber.

A. Trial

Church was tried before a jury in the Hidalgo County district court from March 11-13, 1986. The State's theory was that Church's motive for the robbery was revenge. There was evidence that Church had approached Carl Wilson in 1980, seeking information about mining property that Wilson and Church's grandfather had claimed as business partners, years before. Wilson initially refused to disclose the location, but after Church's repeated visits the same year, Wilson took Church to an old mining site. Nevertheless, Church still believed that Wilson had cheated Church's grandfather by staking a claim in the Burro Mountains without his grandfather's knowledge. As a result, Church spent considerable time searching the mountains for Wilson's claim markers.

There was also evidence of the following facts. In 1981, Church was incarcerated in a federal prison. While there, he befriended Ray Hernandez. Upon Church's release from prison in 1983, he resumed his search in the mountains for proof of Wilson's alleged duplicity.

Two days before the instant robbery Church telephoned Hernandez and then picked him up in Albuquerque. The two drove in Church's yellow jeep to the Lordsburg area. The day after the Wilson robbery, Church and Hernandez went to Church's home where they researched the value of some coins that Church claimed to have found in the mountains. Hernandez stayed overnight and Church drove him back to Albuquerque on June 15th.

In addition to Church's confessions, the State offered in evidence a pistol belonging to Church. The State also presented evidence that Church sold unprocessed gold to a Ruidoso jeweler and some old coins to a Roswell, N.M., coin dealer shortly after the robbery. Additionally, the State presented receipts dated shortly after the robbery showing that Church purchased a new tire for his jeep (allegedly to replace one damaged while fleeing the crime scene) and that Church wired Hernandez $82.67 via Western Union.

Church testified on his own behalf, denying any involvement in the robbery itself and asserting that he had been prospecting that night. He said he confessed to the crime only to protect Laura from Darnell's threats to arrest her on unfounded charges and to secure Darnell's promise to return the jeep and Laura's photos and fingerprints to her. According to Church, shortly before the robbery he had given Hernandez a ride from Albuquerque to Tularosa, N.M., where Hernandez' brother lived. After dropping Hernandez off on June 13, Church encountered Bailey and Green outside Lordsburg. Church alleged that Bailey asked him if he knew where she could obtain some "speed." Church gave her Hernandez' phone number, and then went into the mountains until the following day.

Church's defense theory was that Hernandez, Bailey and Green robbed the Wilsons while he was gone, using information obtained from Church that the Wilsons kept gold in their home. Church further posits that Bailey accused him to protect Green, the third robber. Moreover, Church contends that Green smuggled drugs to Bailey to ensure she would not change her story. Church also explained that the gold and coins he sold were his, and that the money sent to Hernandez was to repay an earlier debt.

Both of the Wilsons testified at trial about the details of the robbery. Also, Kelly Green and Kimala Bailey testified as prosecution witnesses. In return for her testimony, Bailey received a lighter sentence for her involvement in the robbery.

B. Conviction and Post-Trial Proceedings

The jury convicted Church of a single count of accessory to an armed robbery. He was sentenced to ten years' imprisonment, followed by two years of parole. 3 Church then appealed to the New Mexico Court of Appeals, alleging error because: (1) an involuntary confession was admitted in evidence against him; (2) the denial of his motion for a change in venue violated his right to an impartial jury; and (3) the evidence was insufficient to support his conviction. The state appeals court rejected each of these claims and Church's petition for...

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