Gonzales v. Bravo

• Decision Date: 27 September 2013
• Docket Number: No. 11-cv-0686 MCA/SMV,11-cv-0686 MCA/SMV
• Parties: RAYMOND M. GONZALES, Petitioner, v. ERASMO BRAVO and ATTORNEY GENENERAL OF THE STATE OF NEW MEXICO, Respondents.
• Court: U.S. District Court — District of New Mexico

RAYMOND M. GONZALES, Petitioner, v. ERASMO BRAVO and ATTORNEY GENENERAL OF THE STATE OF NEW MEXICO, Respondents.

No. 11-cv-0686 MCA/SMV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: September 27, 2013

MAGISTRATE JUDGE'S

PROPOSED FINDINGS AND RECOMMEND DISPOSITION

THIS MATTER is before the Court on Petitioner's [Original] Petition [Doc. 1], filed on August 4, 2011, and on his Amended Petition, see [Doc. 33], which was permitted by the Court on June 3, 2013. Respondents answered on June 13, 2013. [Doc. 37]. Petitioner filed a letter, which I construe as a reply, [Doc. 39], on June 26, 2013. On March 19, 2013, the Court referred the case to the undersigned for analysis and a recommended disposition. [Doc. 21]. Being fully advised in the premises, I find that Petitioner has failed to show that the state courts' decisions were contrary to, or involved an unreasonable application of, clearly established Federal law or were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254. Therefore, I recommend denying the Petition and dismissing the action with prejudice. Finally, I recommend denying Petitioner's request for an evidentiary hearing, [Doc. 17], because the claims were adjudicated on their merits by the state courts. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011).

Background¹

Petitioner was convicted on May 8, 2008, of three counts of distributing methamphetamine. The charges stemmed from a sting operation carried out by the United States Air Force Office of Special Investigations ("OSI") at Cannon Air Force Base ("the Base"), near Clovis, New Mexico. On the morning of trial, Defendant made an oral motion for dismissal of the charges because, he argued, the OSI's investigation violated the Posse Comitatus Act ("PCA"). 18 U.S.C. § 1385. (As explained in greater detail herein, the PCA limits the military's involvement in local law enforcement efforts.) The trial court took the motion under advisement and indicated that the issue would be revisited at trial and after the facts underlying the charges were more fully developed.

The pertinent evidence presented at trial showed the following. Jason McMackin, an OSI Agent at the Base, was in charge of investigating Petitioner. At the time of the trial, McMackin had served in the military for more than eight years and had focused on narcotics investigations for the last three of those years. One of OSI's responsibilities was to ensure the safety of military personnel at the Base. This entails periodic assessments of potential narcotics sources in the community surrounding the Base.

The investigation into Petitioner began when OSI received reports that airmen were obtaining narcotics from a local business called Solar Shield. During the investigation, McMackin utilized a confidential informant, airman Dustin Maples, who had a part-time job at Solar Shield. Petitioner's uncle also worked at Solar Shield, and the uncle arranged severalmeetings between Maples and Petitioner, during which Petitioner sold methamphetamine to Maples. These transactions were monitored by McMackin and other OSI agents.

After each transaction, Maples turned over the methamphetamine to McMackin. McMackin performed field tests on the drugs and sent them to the United States Army Criminal Investigation Laboratory. McMackin's field tests confirmed that the drugs were indeed methamphetamine, and the military forensic examiner who evaluated the drugs at the Army lab also confirmed this conclusion.

There was no testimony presented at trial regarding when, under what circumstances, or by whom Petitioner was arrested, nor did the parties brief the issue on direct appeal. However, McMackin testified that the OSI conducts monthly reviews with the Clovis Police Department, the New Mexico State Police, or the Region Five task force. He explained that when one of these law enforcement agencies has interest in one of OSI's targets, OSI passes that case off to the agency. Prior to trial, there was some discussion in chambers regarding the "mingling" of local, federal, and military law enforcement in the investigation of Petitioner. Specifically, the State proffered that both the Clovis Police Department and the federal Drug Enforcement Agency ("DEA") were involved in investigating Petitioner.

After the State rested its case at trial, Petitioner renewed his motion to dismiss based on violation of the PCA. The trial court denied the motion. It concluded that the PCA had not been violated because there was an appropriate military interest that justified OSI's investigation of Petitioner. Petitioner was convicted on all three drug-trafficking charges. He was sentenced as a habitual offender to a total term of 12 years' imprisonment with at least three years suspended infavor of supervised probation. Judgment, Sentence, and Order Determining Habitual Offender Status [Doc. 10-1] at 1-3.

Through counsel, Petitioner appealed his conviction on May 21, 2008, based on the PCA-violation argument. The New Mexico Court of Appeals rejected Petitioner's arguments and affirmed the convictions on September 28, 2010.

In a thorough opinion, the court explained that the PCA "makes it a criminal offense to . . . willfully use any part of the . . . Air Force as a posse comitatus or otherwise execute the laws." [Doc. 10-2] at 47 (brackets omitted) (citing New Mexico v. Cooper 1998-NMCA-180, ¶ 13, 126 N.M. 500, 972 P.2d 1)). However, "[w]here military involvement is limited and does not invade the traditional functions of civilian law enforcement, such as in making arrests, conducting searches or seizing evidence, the coordination of military efforts with those of civilian law enforcement does not violate the PCA." Id. (brackets omitted) (citing Cooper, 1998-NMCA-180, ¶ 13).

The Court of Appeals disagreed with the trial court regarding whether the PCA had been violated. Id. The Court of Appeals held that the military's interests were irrelevant to the question of whether a PCA violation had occurred. Id. Nevertheless, the court affirmed the conviction on another ground. Id. at 48. Essentially, the Court of Appeals held that the proper remedy for violation of the PCA did not include suppression, and therefore, the conviction was affirmed, irrespective of any PCA violation. See id. Relying on Cooper, the Court of Appeals held that because Petitioner failed to present evidence of "widespread and repeated" violations of the PCA, the exclusionary rule did not apply, even if the PCA had been violated. Id. The court found that Petitioner had more than one opportunity to present such evidence but did not do so.Id. at 53-54. Additionally, the court noted that Petitioner did not argue on appeal that he had been denied the opportunity to present such evidence or that, had he been given the opportunity, he could have shown that there were widespread and repeated violations of the PCA.² [Doc. 10-2] at 54-55. Thus, the court rejected Petitioner's PCA argument.³

Petitioner filed a petitioner for a writ of certiorari, which the New Mexico Supreme Court denied on December 16, 2010. [Doc. 10-3] at 37.

Petitioner then filed a pro se petition for the writ of habeas corpus in state court on March 24, 2011. [Doc. 10-3] at 39-57. The petition was denied by the state district court, and the state Supreme Court denied certiorari on June 8, 2011. [Doc. 10-3] at 58-60, 29.

Petitioner filed his original Petition in this Court on August 4, 2011. [Doc. 1]. Respondents answered on October 11, 2011, arguing that the Petition was "mixed," i.e., that it impermissibly contained both exhausted and unexhausted claims. [Doc. 10]. Ultimately, Petitioner voluntarily withdrew the unexhausted claims and clarified one of his existing claims. See [Doc. 33]. Respondents filed an amended answer on June 13, 2013. [Doc. 37]. The claims ripe before this Court are:

(1) Petitioner's conviction was obtained in violation of the PCA;

(2) Petitioner's trial counsel was unconstitutionally ineffective by failing to interview DEA agents who would have testified that they withdrew from the investigation of the case due to lack of illegal activity by the Petitioner;

(3) Petitioner's defense counsel, the trial court, and counsel for the State acted in concert to deprive him of his right to confront an Air Force witness who testified that the DEA was involved in the criminal investigation; and

(4) An Air Force investigator conducted an illegal search and seizure in violation of the Fourth Amendment.

See [Doc. 33] (Order allowing some proposed amendments to the Petition but not others).

Standard For § 2254 Habeas Petitions

The provisions of § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 ("AEDPA"), govern this case. ⁴ A petition for habeas corpus under § 2254 attacks the constitutionality of a state prisoner's conviction and continued detention. The Court cannot grant habeas relief pursuant to § 2254(d) unless the decision in a petitioner's state-court proceeding:

(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.

§ 2254(d) (emphasis added). "Even if a state court resolves a claim in a summary fashion with little or no reasoning, [federal courts] owe deference to the state court's result." Paine v. Massie, 339 F.3d 1194, 1198 (10th Cir. 2003). The standard is "highly deferential" to state courts, and the Supreme Court has added that it is "difficult to meet," as it demands that state-court decisions be given the benefit of the doubt. Pinholster, 131 S. Ct. at 1398 (citing Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Woodford v. Viscotti, 537 U.S....