Soto v. Nance

• Decision Date: 15 September 2011
• Docket Number: CIV 11-0499 BB/KBM
• Parties: ROBERT ORTIZ SOTO Petitioner, v. STEVE NANCE, Acting Warden, Southern New Mexico Correctional Facility, Respondent.
• Court: U.S. District Court — District of New Mexico

ROBERT ORTIZ SOTO Petitioner,

v.STEVE NANCE, Acting Warden, Southern New Mexico Correctional Facility, Respondent.

CIV 11-0499 BB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date: September 15, 2011

PROPOSED FINDINGS

AND

RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Robert Soto's counseled petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Because he filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), its standards apply to this case. E.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); DeLozier v. Sirmons, 531 F.3d 1306, 1319 (10th Cir. 2008), cert. denied, 129 S. Ct. 2058 (2009). All of the issues can be resolved on the record before me and, therefore, an evidentiary hearing is unnecessary. E.g., Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Hooks v. Workman, 606 F.3d 715, 730-31 (2010); Alverson v. Workman, 595 F.3d 1142, 1164 (10th Cir. 2010), cert. denied, 131 S. Ct. 512 (2010); Rule 8(a), RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS. I recommend that this petition not be construed as a § 2241 petition, that Respondents be found to have waived exhaustion, and that the petition be denied on the merits.

I. Factual Background

While driving through an intersection in 2008, Petitioner collided with a motorcyclist who was making a left-hand turn. The motorcyclist died immediately. Petitioner's blood-alcohol content tested well in excess of the legal limit. This accident constituted Petitioner's third arrest for drinking and driving within an eight-year-period, and a supplemental information listed Petitioner's 2001 conviction for driving under the influence. Petitioner also had been arrested in 2006 for driving while intoxicated, though a successful suppression motion resulted in no prosecution for that offense. See, e.g., Doc. 8-1 at 16-17, 25-26, 51-52, 61.

As for the 2008 offense, Petitioner pleaded guilty to homicide by vehicle while intoxicated, in violation of N.M. Stat. Ann. § 66-09-101(A). He did not contest the 2001 conviction. The trial judge entered judgment that, among other things, imposed a sentence of imprisonment of ten years. See, e.g., Doc. 8-1 at 1-14.

The trial judge also decided that the 2008 offense constituted a "serious violent offense" for purposes of the New Mexico Earned Meritorious Deductions Act ("EMDA"). Under the EMDA, inmates have the ability to accrue "good time" credits.¹ The statute defines the maximum number of credits available depending on whether the trial judge designates the crime of conviction as a "serious violent offense." If the crime is so designated, an inmate can accrue no more than four good time credit days per month. Otherwise, an inmate can accrue up to thirty days per month. See, e.g., N.M. Stat. Ann. § 33-2-34; State v. Tafoya, 148 N.M. 391, 396-97,237 P.3d 693, 698-99 (N.M. 2010). The sentencing judge announced his reasons for his finding on the record:

THE COURT: Counsel, I've compared this case to others. I will agree with Mr. Lilley that other cases have stronger factors and it would be easier to imagine if things were different in this case how there would be stronger factors than there are. I think the factors sufficient that this should be found in a serious violent offense and I'll explain why.

We have a DWI homicide charge here, and so necessarily that's going to include intoxation (sic) impairment, and it's going to include death. And whether that's a violent death or not would depend on the context of the meaning of the word "violent," but death was caused by violent means, by trauma.

This isn't a case of one person intentionally attacking another with the intent that they end up dead, I understand that.

The courts have found that DWI homicide can be the kind of violent offense that fits within the statute. Is this of the realm that should fit a serious violent offense? Well, DWI homicide by itself would not be, there must be some additional factors.

Also, we have one prior DWI conviction. I don't think that by itself would catapult this into a serious violent offense because the legislature's already told us what to if there's one prior felony - one prior DWI conviction, it's add a four-year-enhancement period. So that alone wouldn't make this a serious violent offense for purposes of meritorious deduction.

I think what distinguishes this case is the 2006 event. And I understand Mr. Lilley's argument that as a defense attorney he feels a bit of unfair advantage to the State to be able to argue things that aren't convictions, but we all know that the law of sentencing is that anything that's relevant, that in good faith can be argued, can be argued. And it would appear that the State has, at least, a basically good faith basis to say that in 2006 that Mr. Soto was stopped, that he was tested and found by an officer to be subject to arrest for DWI. That he underwent a breath test and came up .20 [blood alcohol content - known as "BAC"].

MR. KOVAC: It was a .18, Judge.

THE COURT: .18. Thank you.

There may have been arguments that were never made about whether that was a valid test that would have been admissible at trial, I understand those limitations.

But we have another episode of driving with what would appear to be a high level of alcohol in the blood breath, certainly impaired.

What's not important to me in this analysis is that would or would not have been a conviction, what is important to me in this analysis is that in 2006 Mr. Soto had already had a 2001 DWI conviction with a high BAC, had another experience where he was stopped and arrested, and apparently was driving while impaired with a high BAC, and had an opportunity to address that problem and eliminate that risk to the public and didn't do it. And two years later, from similar behavior, a person dies. I think that takes this out of the just a DWI homicide with one prior DWI conviction. It's a case of someone who had the opportunity to avoid future consequences, choose not to take that opportunity.

That's the only reason on which I would find this to be a serious violent offense, and the Appellate Courts may decide that that's not enough. I want the record to be clear that's my rationale for doing it.

It's not a case where Mr. Soto, I think, set out to hit someone, and it's not a case where he was otherwise drunken driving recklessly.

* * * * *

I think that the salient factor in this case is that the 2006 experience and the opportunity that it presented for Mr. Soto to make the changes that were necessary to prevent a 2008 death.

Doc. 1-2 at 23-26 (emphasis added).

II. Procedural Background

A different attorney represented Petitioner on direct appeal. Appellate counsel raised a single issue –– that the trial judge's findings were insufficient under state law to conclude the conviction qualified as a "serious violent offense" for EMDA purposes. See, e.g., Doc. 8-1 at57-63. The New Mexico Court of Appeals disagreed. See Doc. 8-1 at 68-70. When appellate counsel raised the same issue in a petition for certiorari, Doc. 8-2 at 8-13, the New Mexico Supreme Court declined to hear the case, id. at 33. That concluded the state proceedings.

Yet another different attorney represents Petitioner in this matter, and he filed the instant action with only a few months to spare on the applicable one-year statute of limitations. See 28 U.S.C. § 2244(d) (applicable to § 2241 and to § 2254 petitions). The statute has since expired. Duncan v. Walker, 533 U.S. 167, 181-182 (2001) (statute of limitations is not tolled during the pendency of a federal petition).

The federal petition raises three claims. First, habeas counsel asserts that the trial judge's reliance on the 2006 arrest violates the Fourth, Fifth, and Sixth amendments. See Doc. 1 at 5-8. Second, in a memorandum submitted with the petition, counsel asserts that the EMDA violates the Supreme Court decisions in Watts, Apprendi, and Blakely. See Doc. 1-1 at 3-4 (citing State v. Worrick, 139 N.M. 247, 131 P.3d 97 (Ct. App. 2006), cert. quashed, 142 N.M. 436, 166 P.3d 1090 (N.M. 2007), Blakely v. Washington, 542 U.S. 296 (2004), Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Watts, 519 U.S. 148 (1997)); see also Doc. 10 at 3-4. Third, habeas counsel also argues that allowing the prosecution to make a "good faith" showing of the 2006 arrest violates the Fourth and Fifth Amendments, citing to both United States v. Acosta, 303 F.3d 78 (1st Cir. 2002) and United States v. Ryan, 236 F.3d 1268 (10th Cir. 2001) in the memorandum, and Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705 (2011) in the reply. See Doc. 1-1 at 4-6; Doc. 10 at 3-4.

The State's answer asserts that "Petitioner has exhausted the[se] claims." Nevertheless, the State declares that it "does not expressly waive the exhaustion requirement, because of the possibility that Petitioner may amend or otherwise modify the claims raised . . . or the possibilitythe Court will interpret the claims differently." Doc. 8 at 6. Respondent asserts that because Petitioner is challenging the "calculation and execution" of his sentence, the "correct statute is 28 U.S.C. § 2241." Id. Respondent further maintains that the petition has no merit under applicable AEDPA standards. Id. at 7-10.

III. Analysis

A. Lack of Exhaustion Waived

Before filing for habeas relief in the federal courts, a petitioner must exhaust available state remedies. See, e.g., Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). "The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court." Johnson v. Kansas Parole Bd., 419 F. App'x 867, 870 (10th Cir. 2011) (internal quotations and citation omitted). The exhaustion requirement applies regardless of whether the federal petition is construed as arising under § 2254 or under § 2241, and in either instance the requirement can be waived.²

Despite the assertions by both parties that state...