Hoxsie v. Kerby, 95-2207

• Decision Date: 11 March 1997
• Docket Number: No. 95-2207,95-2207
• Citation: 108 F.3d 1239
• Parties: 97 CJ C.A.R. 382 Gary Randall HOXSIE, Petitioner--Appellant, v. Dareld KERBY, Warden; Tom Udall, Attorney General for the State of New Mexico, Respondents--Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1239

108 F.3d 1239

97 CJ C.A.R. 382

Gary Randall HOXSIE, Petitioner--Appellant, v. Dareld KERBY, Warden; Tom Udall, Attorney General for the State of New Mexico, Respondents--Appellees.

No. 95-2207.

United States Court of Appeals, Tenth Circuit.

March 11, 1997.

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant.

Bill Primm, Assistant Attorney General (Tom Udall, Attorney General for the State of New Mexico, with him on the brief), Santa Fe, New Mexico, for Appellees.

Before TACHA, HENRY, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

Gary Randall Hoxsie, an inmate at the Central New Mexico Correctional Facility, appeals an order of the district court adopting the magistrate judge's Findings and Recommended Disposition and dismissing Hoxsie's petition for habeas corpus pursuant to 28 U.S.C. § 2254. The magistrate found that Hoxsie's claims of prosecutorial misconduct and ineffective assistance of counsel were without merit and denied his request for an evidentiary hearing. We construe Hoxsie's notice of appeal as an application for a certificate of appealability. See Fed. R.App. P. 22(b); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997). Because we find that Hoxsie "has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), we grant the certificate and exercise jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

BACKGROUND

In 1983, a New Mexico state jury convicted Hoxsie of first-degree murder, armed robbery, and conspiracy to commit armed robbery, resulting in a sentence of life imprisonment. The testimony and evidence proffered at trial showed that in the early morning of October 23, 1982, Hoxsie (the defendant) and John Waters (Hoxsie's co-defendant) left their apartment to look for Gary Suiter (the victim). Suiter owed Hoxsie $275 in gambling debts. Hoxsie and Waters found Suiter at a local restaurant. The three left the restaurant in Hoxsie's pick-up truck and headed in the direction of Rio Rancho, New Mexico. Hoxsie drove to the north beach area of the Rio Grande River, a remote, wooded area that Hoxsie frequented. Hoxsie, who commonly carried a .357 Magnum in his truck, got into a heated argument with Suiter concerning the gambling debt. Suiter was shot with the .357 at close range in the hand, chest, and head. His jewelry was removed and his body was dragged about thirty feet from the road to a bushy area near the river. Hoxsie claimed that Waters killed Suiter. Waters, on the other hand, claimed he stayed in the truck and Hoxsie killed Suiter. Hoxsie and Waters got back in the truck and drove away. Within days of the murder, Hoxsie contacted several people about selling Suiter's jewelry. The authorities arrested Hoxsie in possession of the victim's jewelry.

The record indicates that Hoxsie offered three different versions of Suiter's death. First, in his pretrial statement to the police, Hoxsie stated that Waters wanted to steal Suiter's jewelry but that he would not help Waters. According to the statement, Waters then shot the victim. Second, in his opening statement to the jury, Hoxsie's trial counsel set up a "defense of another" theory and told the jury that the evidence would show that Waters shot Suiter to protect Hoxsie from attack. At trial, however, neither Hoxsie nor Waters testified consistent with this theory, which was clearly inconsistent with the forensic evidence admitted at trial showing close range shots to Suiter's head and chest. At trial, Hoxsie admitted that the story had been "concocted." Instead, Hoxsie offered a third version of the events, testifying that after he and Suiter began to argue, Suiter "took a swing" at him, at which time Waters left the truck and approached Hoxsie to find out what was happening. Hoxsie testified that he told Waters to stay out of the argument, but that some time later when Hoxsie was not looking, Waters shot Suiter at close range.

During trial, Hoxsie's trial counsel called Waters as a witness. Waters's testimony After the jury convicted Hoxsie on all charges in the indictment, Hoxsie appealed to the New Mexico Supreme Court. He alleged that prosecutorial misconduct deprived him of a fair trial. Specifically, Hoxsie alleged that the prosecution: (1) asked many repetitive and leading questions, (2) sought to impeach Hoxsie by reading from an inadmissible transcript, (3) introduced dozens of repetitive and gruesome photographs, (4) acted improperly in presenting the testimony of the victim's mother, and then allowing her to remain in the courtroom for the remainder of the trial, (5) noted during cross-examination of Hoxsie and closing argument that Hoxsie testified after he had heard all the testimony against him, and (6) committed cumulative error based on the above alleged misconduct. The New Mexico Supreme Court did not address the first two claims because Hoxsie did not include them in his docketing statement. The court, however, rejected Hoxsie's remaining grounds for relief, including cumulative error. See State v. Hoxsie, 101 N.M. 7, 677 P.2d 620, 622 (1984), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 779 P.2d 99 (1989).

                ultimately implicated Hoxsie.  In his pretrial statement, Waters seemed confused and claimed to remember nothing about the night, admitting that he had been drinking and was "messed up" and "in a daze."   Several of his statements seemed to implicate himself.  At one point, for example, he stated, "I don't remember.  All of a sudden, all this commotion started.  I had a gun in my hand."   At trial, however, Waters testified that he remained in the truck and did not see what happened, but that Hoxsie handed him the gun and told him to put it under the seat
                

Hoxsie then filed this federal petition for writ of habeas corpus, challenging his state conviction on the basis of prosecutorial misconduct and ineffective assistance of counsel. His allegations of prosecutorial misconduct are the same as those raised in his direct appeal. Hoxsie also contends that he was denied effective assistance of counsel because his trial counsel: (1) gave an opening statement that conflicted with Hoxsie's pretrial statements and his later trial testimony, (2) called Waters as a witness who provided the only direct evidence of Hoxsie's guilt, (3) failed to obtain the testimony of a witness who heard Waters say that he, not Hoxsie, had killed the deceased, (4) failed to obtain the testimony of various character witnesses, and (5) failed to introduce other evidence tending to exonerate Hoxsie, including evidence that the murder weapon was found in Waters's bedroom and that Waters had threatened people with the murder weapon about a week before the shooting. The district court referred the case to a magistrate, who recommended that Hoxsie's petition be dismissed on the merits. After amending the magistrate's findings in five respects, the district court adopted the magistrate's recommendation and this appeal followed.

DISCUSSION

I. EXHAUSTION OF STATE REMEDIES

Before addressing the merits of Hoxsie's habeas petition, we must consider whether we should dismiss the petition because Hoxsie has failed to exhaust his available state remedies. In its answer to Hoxsie's habeas petition in the district court, the State conceded that Hoxsie had exhausted all of his claims. On appeal, the State now contends that absent an affirmance on the merits, the petition should be dismissed because Hoxsie has failed to exhaust his ineffective assistance claim in New Mexico state court.

Generally, a federal court presented with a habeas petition containing both exhausted and unexhausted claims should dismiss the entire petition without prejudice. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). We need not resolve this issue, however, because we conclude that it is appropriate to address the merits of a habeas petition notwithstanding the failure to exhaust available state remedies where, as here, "the interests of comity and federalism will be better served by addressing the merits forthwith." Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987); see Miranda v. Cooper, 967 F.2d 392, 400 (10th Cir.1992). The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, codifies the holding in Granberry by authorizing the denial of a petition on the merits despite failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(2). Because § 2254(b)(2), standing alone, does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion, we read § 2254(b)(2) in conjunction with Granberry. The Supreme Court in Granberry reasoned that "if the court of appeals is convinced that the petition has no merit, a belated application of the exhaustion rule might simply require useless litigation in the state courts." Granberry, 481 U.S. at 133, 107 S.Ct. at 1674. As we shall explain, all of Hoxsie's claims are without merit.

II. Prosecutorial Misconduct

Hoxsie first contends that prosecutorial misconduct in his state criminal trial deprived him of various constitutional rights, including the right to due process, to remain silent, and to confront witnesses against him. As stated above, Hoxsie raises several grounds for his claim of prosecutorial misconduct. The New Mexico Supreme Court did not address the merits of the first two grounds--asking repetitive and leading questions and reading from an inadmissible transcript--in Hoxsie's direct appeal. See Hoxsie, 677 P.2d at 622. Hoxsie failed to include these grounds in his docketing statement and, accordingly, the court ruled that they were procedurally barred. Id. In Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d...