Montoya v. Ulibarri

• Decision Date: 20 June 2007
• Docket Number: No. 29,218.,29,218.
• Citation: 2007 NMSC 035,163 P.3d 476
• Parties: Joseph MONTOYA, Petitioner, v. Robert ULIBARRI, Warden, Respondent.
• Court: New Mexico Supreme Court

163 P.3d 476

2007 NMSC 035

Joseph MONTOYA, Petitioner, v. Robert ULIBARRI, Warden, Respondent.

No. 29,218.

Supreme Court of New Mexico.

June 20, 2007.

Dane Eric Hannum, Albuquerque, NM, for Petitioner.

Gary King, Attorney General, Arthur Pepin, Assistant Attorney General, Santa Fe, NM, for Respondent.

Scott M. Davidson, Ph.D., Esquire, Scott M. Davidson, Albuquerque, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.

OPINION

MAES, Justice.

{1} Petitioner, Joseph Montoya, appeals from a decision of the district court denying his petition for habeas corpus pursuant to Rule 5-802 NMRA. See Rule 12-501 NMRA; Rule 5-802 NMRA. This case presents the issue of whether the protections afforded by the New Mexico Constitution allow a prisoner to obtain habeas relief based upon a free-standing claim of actual innocence, independent of any constitutional violation at trial. We conclude that the continued incarceration of an innocent person is contrary to both due process protections and the constitutional prohibition against cruel and unusual punishment within the New Mexico Constitution. Therefore, we hold that a habeas petitioner may obtain relief if he can establish by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence. However, Petitioner has failed to meet this standard. Thus, we affirm the district court's denial of Petitioner's habeas petition.

FACTS AND PROCEEDINGS BELOW

{2} A proper understanding of our determination of the issues presented in this case requires a thorough review of the procedural history of the case, as well as the evidence produced at Petitioner's criminal trial, at the hearing on his motion for a new trial, and at his habeas proceeding. Petitioner was convicted by a jury of second-degree murder, contrary to NMSA 1978, § 30-2-1(B) (1994), and two counts of aggravated assault with a deadly weapon, contrary to NMSA 1978, § 30-3-2(A) (1963). The evidence supporting Petitioner's convictions was summarized by this Court in a Dispositional Order of Affirmance addressing Petitioner's original appeal on the merits. State v. Montoya, Dispositional Order of Affirmance, No. 27,594, ¶¶ 5-11 (Mar. 17, 2003). "[Petitioner] and his mirror image, identical twin, Jeremy, lived in an apartment with their older brother, Jason. As `mirror image' twins, [Petitioner] is right handed, and Jeremy is left handed. Several witnesses testified that the two brothers, although identical, are distinguishable; [Petitioner] is taller and weighs more than Jeremy. On September 2, 1999, [Petitioner] and Jeremy attended a party, which was, according to [Petitioner], located approximately four or five blocks, or a `good [ten-] minute walk' from Jason's apartment. [Petitioner] and Jeremy were involved in a fight with [three individuals]. Later that night, at approximately 11:40 p.m., [Petitioner] returned with a gun; in front of numerous witnesses, [Petitioner] fired the gun several times. The victim [Robert Williams] died from a gunshot to the back. Several witnesses specifically identified [Petitioner], as opposed to Jeremy, as the shooter, including Vickie Hughes. She testified that she knew the twins and that she attended the party on the night of the altercation. She identified [Petitioner] as the shooter. The assault victims [Lamar Don James and Kenneth Taylor] testified that the shooter pointed the gun directly at them and fired.

{3} "[Petitioner] testified that, following the initial fight, he and Jeremy went to Jason's apartment, where they told several people about the altercation. [Petitioner] testified that he went into the bathroom and cleaned off a cut near his eye. [Petitioner] testified that he, Jeremy, and Jason went with Gabriel Estrada to the house Estrada shared with the Montoyas' cousin, Vanessa Estrada, because they were afraid to stay at Jason's apartment. [Petitioner] testified that they stayed at Estrada's house that night." [Petitioner] testified that, after their arrival, he again went into the bathroom to clean off his cut; afterward, they went into the garage to socialize. [Petitioner] testified that he did not have a gun, that he did not talk about going back to the party, and that he was not the shooter. [Petitioner] testified that Jeremy was with him the entire time after they left the party, that Jeremy did not return to the party, and that Jeremy was also not the shooter. [Petitioner] presented alibi witnesses including Jeremy, their brother Jason, and his friends, Steven Sunday, Michael Ponce, and Gabriel Estrada. Jeremy testified that, after the fight at the party, they went to Jason's apartment for about five minutes and then they went to their cousin's house. Jeremy testified that he had never seen a gun at Jason's home. Jeremy testified that neither he nor his twin, [Petitioner], left the Estrada house again that night. Jeremy testified that he was also not the shooter and that he was positive that [Petitioner] was not the shooter. Gabriel Estrada, Sunday, Ponce and Jason also all testified that the twins came to Jason's apartment after the initial fight for a short period of time, then went to the Estrada house. Gabriel Estrada testified that [Petitioner] did not leave the house. Jason testified that he did not own a gun, and he also testified that they went `straight to the garage' when they arrived at the Estradas' home. Vanessa Estrada testified that [Petitioner], Jeremy, Jason, and Gabriel Estrada arrived at her house at 11:30 that evening, that they went into the garage, and that [Petitioner] and Jeremy were there when she woke up the next morning.

{4} "[Petitioner] was convicted by a jury. After his conviction, he moved for a new trial. Defense counsel, at the hearing on the motion, stated that right after the conclusion of the trial, he received a call from Jeremy asking him to meet with himself, Jason, and his parents. Defense counsel stated that Jeremy told him that he was the shooter. Defense counsel presented evidence that Jeremy took a polygraph which supported his new claim that he was the shooter.

{5} "Jeremy again testified at the motion for a new trial. Jeremy's new testimony was not consistent with his own testimony at [Petitioner]'s trial, with [Petitioner]'s trial testimony, with the testimony of [Petitioner]'s alibi witnesses, or with critical details within the testimony of the State's witnesses. Jeremy stated that, after the initial fight, the twins went to Jason's apartment and [Petitioner] got into the shower. Jeremy stated that he had seen a gun in Jason's room, armed himself with the nine millimeter handgun, and, not saying anything to [Petitioner], left the apartment. Jeremy returned to the party to `let [the individuals with whom they'd fought earlier] know that they can't be messing with us.' Jeremy claimed that he approached the men, pulled out the gun, and fired a few shots in the air. He claimed that he never pointed the gun directly at anyone, but instead `[o]ver their heads, more or less.' Jeremy described running down the street while firing the gun. He claimed that, while `shooting in the air,' he `struck a man,' who `fell down.' Jeremy further claimed that, when he approached the man whom he just shot, the `man actually got up and tried to wrestle with me, tried to approach me once again.' Jeremy claimed that he fired another shot `after [the victim] tried to wrestle with' him. He asserted that he ran away, frightened, because he did not know whether anyone was shooting back. He claimed that he threw the gun away near a school and returned to Jason's apartment. He claimed that this event took him less than ten minutes' total time and that [Petitioner] was not with him. Jeremy invoked his right against self-incrimination and refused to answer questions on cross-examination regarding this trial testimony, including whether he simply recalled testifying at [Petitioner]'s trial, as well as specific questions regarding his prior testimony.

{6} "Defense counsel presented an additional witness who supported Jeremy's new confession. Darius Jones testified that he knew the twins and saw the fight at the party. He asserted that he drove to Jason's apartment and saw Jeremy running from the apartment complex toward the area of the party. He claimed that he went to Jason's apartment and spoke to [Petitioner], who had just gotten out of the shower; as a result, Jones admitted that both [Petitioner] and Jason knew he had been at Jason's apartment on the night of the party. Jones said he never made a statement to police." State v. Montoya, Dispositional Order of Affirmance, No. 27,594, ¶¶ 5-9 (Mar. 17, 2003)

{7} "The trial court denied [Petitioner]'s motion for a new trial. The court found that [Petitioner] and Jeremy colluded to create a complete alibi for both and withheld information from the defense attorney. The court found that the information could have been discovered through the exercise of due diligence and thus was not `newly discovered' evidence." State v. Montoya, Dispositional Order of Affirmance, No. 27,594, ¶¶ 11 (Mar. 17, 2003). Petitioner appealed to the Court of Appeals.

{8} In a Memorandum Opinion, the Court of Appeals affirmed the district court's denial of Petitioner's motion for a new trial, as well as his convictions and sentence. State v. Montoya, No. 22,219, slip op. at 5 (N.M. Ct.App. June 17, 2002). The Court held that the standards for granting a new trial based on newly discovered evidence were not met, concluding that the testimony would probably not change the result, the evidence should have been discovered before trial by the exercise of due diligence, and the evidence, "insofar as [Petitioner]'s whereabouts are concerned, could be viewed as merely cumulative of his own alibi defense and therefore merely impeaching of the State's witnesses, who were already impeached on the basis of questions concerning the accuracy of their identification of the...