Duncan v. Kerby, 20,055

• Docket Nº: No. 20,055
• Citation: 1993 NMSC 11, 115 N.M. 344, 851 P.2d 466
• Case Date: February 23, 1993
• Court: Supreme Court of New Mexico

Page 466

851 P.2d 466 115 N.M. 344 Donald DUNCAN, Petitioner-Appellee,
v.
Dareld KERBY, Respondent-Appellant. No. 20,055. Supreme Court of New Mexico. Feb. 23, 1993.
Rehearing Denied March 30, 1993.

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[115 N.M. 345] Tom Udall, Atty. Gen. Anthony Tupler, Asst. Atty. Gen. Santa Fe, for respondent-appellant.

Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, Gary C. Mitchell, Ruidoso, for petitioner-appellee.

OPINION

FROST, Justice.

The State of New Mexico appeals from the district court's grant of a writ of habeas corpus to prisoner Donald Duncan. This appeal raises two issues: (1) whether the doctrine of res judicata bars a defendant's postconviction claim of ineffective assistance of counsel when the same claim has been denied on the merits in a direct appeal, and (2) whether the trial court erred in granting petitioner's writ of habeas corpus on the grounds of ineffective assistance of counsel. We hold that the doctrine of res judicata does not apply in this particular case, and affirm the trial court's grant of habeas corpus relief on the grounds of ineffective assistance of counsel.

Donald Duncan was convicted on six counts of criminal sexual penetration and incest in 1985. On direct appeal with a new attorney, Duncan argued that his conviction should be reversed because he did not receive effective assistance of counsel at trial. The Court of Appeals assessed and rejected the ineffective counsel claim on the merits and affirmed the conviction. Duncan then petitioned the district court for a writ of habeas corpus, requesting postconviction relief on the grounds of ineffective assistance of counsel. After holding an evidentiary hearing on the issue of

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[115 N.M. 346] counsel's effectiveness, District Judge William J. Schnedar, who also had presided over Duncan's jury trial, determined that Duncan had not received effective assistance of counsel at trial, granted the writ of habeas corpus, set aside Duncan's conviction, and ordered a new trial. The judge found that material lapses in the trial attorney's performance leading to a conclusion of incompetent representation included the failure to construct an available and crucial alibi defense, to call key witnesses, and to move to sever offenses.

I. RES JUDICATA IN HABEAS CORPUS PROCEEDINGS

The State argues that Duncan's ineffective assistance of counsel claim is barred by the doctrine of res judicata in this postconviction action because the same claim was raised and rejected on direct appeal. We have held that New Mexico postconviction procedures are not a substitute for direct appeal and that our statutes do not require collateral review of issues when the facts submitted were known or available to the petitioner at the time of his trial. See State v. Gillihan, 86 N.M. 439, 440, 524 P.2d 1335, 1336 (1974). When a defendant should have raised an issue on direct appeal, but failed to do so, he or she may be precluded from raising the issue in habeas corpus proceedings. Id. at 440, 524 P.2d at 1336.¹ A habeas corpus petitioner will not be precluded, however, from raising issues in habeas corpus proceedings that could have been raised on direct appeal either when fundamental error has occurred, Gillihan, 86 N.M. at 440, 524 P.2d at 1336, or when an adequate record to address the claim properly was not available on direct appeal, State v. Gomez, 112 N.M. 313, 314-15, 815 P.2d 166, 167-68 (Ct.App.), cert. denied, 112 N.M. 279, 814 P.2d 457 (1991). Our habeas corpus cases applying preclusion have not involved instances in which a defendant could not make an evidentiary case for himself on direct appeal because facts supporting his claim were not part of the record. Id. at 314, 815 P.2d at 167. The proper exception to the application of the doctrine of res judicata in such circumstances has been described as follows:

If an application [for a writ of habeas corpus] is grounded in facts beyond the record previously presented on appeal, and if the additional facts are those which could not, or customarily would not, be developed in a trial on criminal charges, there should be no issue preclusion.... When a post-conviction application makes a substantial showing that due process or another fundamental right has been abridged--and the application is supported by facts ill-suited for development in the original trial--it should be addressed on its merits. Res judicata does not apply.

State v. Darbin, 109 Idaho 516, 526, 708 P.2d 921, 931 (Idaho Ct.App.1985) (Burnett, J., specially concurring). We adopt this rationale.

Two New Mexico cases endorse SCRA 1986, 5-802 habeas corpus proceedings as the preferred avenue for adjudicating ineffective assistance of counsel claims. See State v. Powers, 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990) (stating that Court of Appeals cannot assess validity of ineffective assistance of counsel claim without the benefit of an evidentiary hearing on the issue, and that postconviction proceedings are recommended for such fact-finding); State v. Stenz, 109 N.M. 536, 539, 787 P.2d 455, 458 (Ct.App.), cert. denied, 109 N.M. 562, 787 P.2d 842 (1990) (same). The rationale is that even assuming that a criminal defendant has a new attorney to handle his direct appeal, the record before the trial court may not adequately document the sort of evidence essential to a determination of trial counsel's effectiveness because

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[115 N.M. 347] conviction proceedings focus on the defendant's misconduct rather than that of his attorney. Consequently, an evidentiary hearing on the issue of trial counsel's effectiveness may be necessary. While this may be done through a remand to the trial court during direct appeal when unusual circumstances exist, habeas corpus is specifically designed to address such postconviction constitutional claims and is the procedure of choice in this situation. It would be inconsistent to recommend habeas corpus for ineffective assistance of counsel claims and then to deny a convicted defendant the ability to use habeas procedure because he was fortunate enough to obtain new counsel on direct appeal and raise the issue at that time. By expressly recommending habeas corpus for claims...