Ellis v. Smith, 022321 NMDC, 2:18-CV-00012-JCH-KRS

Docket Nº2:18-CV-00012-JCH-KRS
Case DateFebruary 23, 2021
CourtUnited States District Courts, 10th Circuit, District of New Mexico




No. 2:18-CV-00012-JCH-KRS

United States District Court, D. New Mexico

February 23, 2021



On a spring day in 2012, while armed with a knife, Petitioner Gene Gilbert Ellis III entered an apartment without permission and forced a thirteen-year-old girl to engage in multiple nonconsensual sexual acts. After pleading guilty to nine criminal counts relating to these events, Ellis was sentenced to forty-three years in prison and an indeterminate period of supervised parole for a period of at least five years to life.

In the instant habeas corpus petition filed pursuant to 28 U.S.C. § 2254, Ellis alleges that his attorney rendered ineffective assistance as to his sentence, and he contends that several of his counts of conviction amount to double jeopardy or are otherwise constitutionally infirm. (Doc. 1). Respondents have filed an answer to Ellis's petition on the merits. (Doc. 28). On January 8, 2018, the Court referred this case to United States Magistrate Judge Kevin R. Sweazea to conduct any necessary hearings and to recommend an ultimate disposition. (See Doc. 3). Having considered the parties' submissions along with the available record, the undersigned RECOMMENDS that Ellis's habeas petition be DENIED.


A. Background and State-Court Proceedings

On May 23, 2012, Ellis entered an apartment in Artesia, New Mexico without permission. (See Ex. BB at 2); (see also Ex. B at 1-2).1 Finding thirteen-year-old M.W. alone in the apartment, Ellis walked up behind her, held a knife to her throat, and then forced her to undress and perform oral sex on him. (See Ex. BB at 2). When M.W. refused his subsequent order to go to the bedroom, Ellis held the knife in one hand, punched M.W. with the other, and then dragged her by her hair into the bedroom. (See id.). Ellis then held down M.W., climbed on top of her, and proceeded to penetrate her vaginally with his finger, tongue, and penis. (See id.). Ellis also placed his mouth on M.W.'s right breast. (See id.). When M.W. begged him to stop, Ellis pulled her hair again and directed her to stop talking. (See id.). When he finished, Ellis grabbed his knife and told M.W. would kill her, her aunt, and her aunt's infant child (both of whom also lived with M.W.) if she told anyone about these events. (See Id. at 3). He then threw M.W.'s phone at her and left the apartment. (See id.).

An investigation that followed revealed traces of semen and saliva, with DNA that was matched to Ellis. (See Ex. BB at 3). Ellis was charged with first-degree kidnapping, four counts of second-degree criminal sexual penetration (“CSP”) involving the use of a deadly weapon, one count of second-degree criminal sexual contact of a minor (“CSCM”) involving use of a deadly weapon, one count of aggravated burglary involving use of a deadly weapon, one count of aggravated assault with a deadly weapon, and one count of bribery of a witness (threats/false testimony). (Ex. D). A supplemental information was later filed contending that Ellis was a habitual offender under New Mexico law due to a prior felony conviction. (Ex. E).

Ellis pleaded not guilty at his arraignment in August 2012, and he waived a preliminary hearing. (See Ex. LL at 3); (Ex. J at 2). However, at a pre-trial conference three months later, with no plea offer on the table, Ellis changed his plea to guilty on all counts. (See Ex. LL at 4); (see also Ex. J at 2); (Ex. AA at 6); (Ex. BB at 4); (Ex. BB att. C ¶¶ 7, 12). Ellis now claims that he did so “at the behest of trial counsel, ” who allegedly told him that he would receive “a sentencing benefit of no more than 15 years” if he accepted responsibility for his crimes. (Doc. 1 at 16). For his part, Ellis's attorney Frank B. Patterson has attested that his office informed Ellis that he was facing 105 years in prison with habitual time and enhancements, but that Ellis stated “that he knew he was guilty and he just wanted to get it over with.” (Ex. BB att. C ¶¶ 4, 8). Moreover, according to Patterson, Ellis had sent letters to the victim and the district attorney describing his attack and apologizing for it. (See Id. ¶ 11). Patterson also attested, and Ellis does not dispute, that Ellis communicated that he wished to change his plea to guilty when the two met at the pretrial conference. (Id. ¶ 12). In any event, Ellis pleaded “straight up” guilty at his November 2012 conference, and the state court accepted this plea. (See, e.g., Ex. AA at 6).

Prior to his sentencing hearing on June 20, 2013, Patterson learned-and conveyed to Ellis-that the prosecution “would be requesting a minimum of 45 years” at his sentencing. (See Ex. BB att. C ¶¶ 9-10). At that sentencing hearing, the prosecutor did indeed ask for a sentence of at least forty-five years' imprisonment, though she urged imposition of “the maximum sentence” in light of the nature of the offense. (See, e.g., Ex. BB at 4). Patterson raised several arguments against a sentence of forty-five years. (See, e.g., id. at 4-5). Ellis himself then testified, admitting that what he had done was “wrong” and “disgusting” and acknowledging that he could not change or take back what he had done. (See, e.g., id. at 5). The trial court ultimately sentenced Ellis to forty-three years' imprisonment with a period of five to twenty years of supervised parole. (Id.); (see also Ex. A) (original judgment).

Ellis attacked his sentence by noticing an appeal to the New Mexico Court of Appeals. (See, e.g., Exs. F & G). While his appeal was pending, the prosecution filed a notice with the New Mexico Court of Appeals arguing that, under state law, the supervised parole term included in Ellis's judgment should have been for five years to life rather than for five to twenty years. (Ex. I). The New Mexico Court of Appeals subsequently affirmed the trial court's sentence and remanded so that the trial court could “amend the parole portion of the judgment and sentence if necessary.” (Ex. K). Although Ellis petitioned the New Mexico Supreme Court for certiorari review of his prison term (Ex. L), the court denied the petition in February 2014 (Ex. M). The trial court subsequently amended Ellis's sentence to include a supervised parole term of five years to life (Ex. B) and denied as untimely Ellis's efforts to withdraw his plea (see Exs. R, S).

Ellis filed a petition for writ of habeas corpus with the trial court, arguing inter alia that (1) Patterson had provided ineffective assistance by assuring Ellis that he would face a maximum of fifteen years' incarceration and five to twenty years' supervised parole if he pleaded guilty (see, e.g., Ex. AA at 14); (2) his convictions for both aggravated burglary and CSP, and his convictions for separate instances of CSP as well as CSCM, violated the Constitution's protections against double jeopardy (see, e.g., id. at 16-21); and (3) his kidnapping conviction must be vacated because any restraint used on M.W. was incidental to the CSP (see, e.g., id. at 21-22). The trial court denied habeas relief (Ex. GG), and the state supreme court denied certiorari review (Ex. II).

B. Procedural Background

Ellis filed a petition in this Court pursuant to 28 U.S.C. § 2254 on January 4, 2018. (Doc. 1). In his petition, Ellis reasserted the aforementioned claims that he had received ineffective assistance of counsel with respect to his plea and sentencing, 2 that his conviction violated the Double Jeopardy Clause of the Sixth Amendment, and that his kidnapping conviction must be vacated under an incidental-restraint theory. (See Id. at 16-18). Ellis also asserted another ineffective-assistance claim for the first time. (See Id. at 16).

Respondents filed an answer focused solely on the argument that Ellis's petition was “mixed” in that it asserted both exhausted and unexhausted claims. (Doc. 11). The undersigned, concluding that the petition was indeed mixed, recommended that the Court dismiss the petition in its entirety unless Ellis voluntarily dismissed the unexhausted claim. (Doc. 17). Ellis subsequently moved to dismiss his unexhausted claim (see Doc. 23), and the Court granted that motion while adopting the undersigned's findings and recommendations (see Doc. 25).

Respondents subsequently filed an answer responding to the merits of Ellis's claims. (Doc. 28). Although the Court provided Ellis an opportunity to file a reply brief within eighteen days of Respondents' answer (see Doc. 25 at 2), Ellis instead belatedly sought an extension of time to file his reply (Doc. 29), and he subsequently sought to withdraw and stay his petition (Doc. 30). On the undersigned's recommendation (see Doc. 32), the Court denied Ellis's motion to withdraw and stay his petition but gave him until September 10, 2019 to file a reply to Respondents' answer (Doc. 33). To date, Ellis has filed no reply brief.


A habeas petitioner under § 2254 must show that he has exhausted the remedies available in state court. See 28 U.S.C. § 2254(b)(1)(A); see also Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006). To satisfy this requirement, the petitioner must “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This includes pursuing discretionary review when that review is part of a state's ordinary appellate review process. Id.

When a petitioner has failed to exhaust state-court remedies, a federal court generally should dismiss the...

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