WILLIAM JOHNSON, District Judge
The Magistrate Judge filed her Proposed Findings and Recommended Disposition on October 18, 2004. Doc. 47. Both Respondents and Petitioner, who is represented by counsel, have filed objections. See Docs. 48-49. For the reasons below, I deny the objections and adopt the findings.
Respondents' Objection 1.
Respondents continue to assert that Petitioner did not exhaust his federal claims to the New Mexico Supreme Court, and they raise a number of related arguments in that regard. I, like Magistrate Judge Molzen, find these arguments and this objection without merit.
As an initial matter, the exhaustion requirement is closely related to what is known as the "fair presentation" doctrine:
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies,
28 U.S.C. § 2254(b)(1), thereby giving the State the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights."
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). To provide the State with the necessary "opportunity,"
the prisoner must
"fairly present" his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366;
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Baldwin v. Reese, 541 U.S. 27, ___,
124 S. Ct. 1347, 1349 (2004) (emphasis added). Respondents contend that under New Mexico Rules of Appellate Procedure, a petition for certiorari "
must state the claims and the relief sought."
Doc. 48 at 3. In other words, Respondents take the position that Petitioner must reiterate each of his claims in his petition for certiorari. However, neither the New Mexico Rules nor the form petition supplied to prisoners support Respondents' contention.
A petition for certiorari from a denial of a state habeas petition "shall:" (1) not exceed ten pages; (2) attach a copy of the petition for writ of habeas corpus and any attachments and the response that were filed in district court; (3) attach a copy of the district court's decision denying the habeas petition; (4) contain a description of the district court proceedings to demonstrate whether an evidentiary hearing was held and, if so, a summary of the evidence presented at the hearing; (5) contain a "direct and concise argument showing that the district court's decision was erroneous;" and (6) contain a prayer for relief. New Mexico Rule 12-501(C).
Nowhere does the Rule require a petitioner to reassert his claims. Indeed, that would be at odds with the requirements of a "direct and concise argument" and attaching the habeas petition and decision of the district court. I agree with the magistrate judge that the Rule plainly sets forth a procedure whereby New Mexico Supreme Court Justices consider the lower-court documents along with the petition. Respondents do not contend that the state court lacked these documents in Petitioner's case.
Gonzales used the pre-printed habeas and certiorari forms that this Court has seen time and again. The habeas petition he filed supplies boilerplate language that the challenge to the sentence is based both on New Mexico and Federal constitutional law, and Petitioner specifically checked that paragraph. In addition, he expressly reiterated the federal nature of his claims in the portion of the habeas form where the prisoner is to detail his grounds for relief. See Exh. JJ at 2, 4. In contrast to the habeas form, which tells the prisoner to attach additional pages if his grounds exceed the space provided, the form petition for certiorari is two pages in length and does not direct the prisoner to attach additional pages. Moreover, nowhere does this simple form require the prisoner to reiterate the claims he is pursuing.
I also refer to the exhibits attached to Document 45. See Doc. 47 at 3, n. 2.
Instead, the form guides the prisoner through the required elements by supplying certain language and leaving blanks for certain details. In the paragraph that supplies the language "[t]he decision of the [district court] is unlawful, erroneous and unjust in that: ____," Petitioner wrote "the court was wrong in deciding that I was not entitled to relief and in denying me a hearing and the opportunity to brief the issues in my petition in order to show that my federal and state constitutional rights were violated." Exh. LL at 1-2. Thus, his petition for certiorari on its face alerts the New Mexico Supreme Court that his claims are federal in nature even without reference to the documents filed in the district court.
Respondents contend that the United States Supreme Court's decision in Baldwin supports the conclusion that Petitioner did not "fairly present" his federal claims to the New Mexico Supreme Court. See Doc. 48 at 3. I find, however, that Respondents interpret the Baldwin holding too broadly and that it is inapposite to the situation pending before the Court.
As an initial matter, there are critical factual distinctions. In contrast to New Mexico's requirement of a "concise" statement on the pre-printed form and copies of the pleadings below, the prisoner in Baldwin detailed each of his claims in his state petition. The Baldwin petitioner specifically asserted a violation of federal law for some claims, but omitted a reference to federal law in another. Here, the face of Gonzales' certiorari petition expressly characterizes his "violations" as both state and federal.
"The petition made several different legal claims. . . . It said that his trial counsel's conduct violated several provisions of the Federal Constitution. . . . But it did not say that his separate appellate `ineffective assistance' claim violated federal law." Baldwin, 124 S. Ct. at 1349-50.
The Ninth Circuit panel decision found that the face of Baldwin's petition did not alert the state court to the "federal nature" of his appellate counsel claim, but excused that failing on the basis that the state court could have discovered the federal nature of the claim it if had read the lower court decision. Respondents characterize the Supreme Court's reversal of that holding as follows: "a petition has not fairly presented a claim to the state court if the state court must read beyond the petition to ascertain the assertion of the federal claim." Doc. 48 at 3. As such, they contend that the New Mexico Rules are irrelevant. I disagree in both respects.
The Supreme Court in fact qualified its holding, saying that it rejected the Ninth Circuit ruling because the decision "would unjustifiably undercut the considerations of federal-state comity that the exhaustion requirement seeks to promote." Baldwin, 124 S. Ct. at 1351. The Ninth Circuit's ruling could have required state judges to read lower court decisions in every instance as a matter of federal exhaustion principles. The Supreme Court noted that appellate judges "often read lower court opinions, but they do not necessarily do so in every case." Id. at 1350-51. The Supreme Court expressly rejected a rule that could "force state appellate judges to alter their ordinary review practices" and thereby impose "a serious burden upon judges of state appellate courts." Id. It is of note, however, that the New Mexico appellate rule at issue here expressly contemplates that the Justices will consider documents beyond the petition in making their decision. See New Mexico Rule 12-501(C).
In Baldwin, the Supreme Court held "ordinarily a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin, 124 S. Ct. at 1351. There, the Court did not entertain the argument that Baldwin's petition was sufficient to raise the federal nature of the claim, because that argument had been waived. See id. at 1352. Instead, the Court assumed that the face of Baldwin's petition alone did not alert the state court to the "federal nature" of the appellate counsel claim.
The Baldwin Court noted that a "litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim `federal.'" Id. at 1350-51. Here, Gonzales did just that; the filled-in form plainly alerts the New Mexico Supreme Court to the "federal nature" of his claims, since he asserts that his "federal . . . constitutional rights were violated." Accordingly, I find Respondents' argument based on Baldwin unavailing.
Respondents' Objection 2.
It is well-settled that a federal habeas claim will be deemed procedurally-defaulted only if there is a default due to an "independent" and "adequate" state ground. If the state courts do not "enforce" a state procedural rule in denying a claim, the "independent" ground is not met and there can be no procedural default. See Ylst v. Nennemaker, 501 U.S. 797, 803-04 (1991); see also Doc. 47 at 9-10 n3 (Judge Molzen's proposed findings and authorities cited therein). Therefore, Respondents' Objection 2 is not well-taken.
See also, e.g., Dretke v. Haley, ___ U.S. ___, ___, 124 S. Ct. 1847, 1851-52 (2004) ("The procedural default doctrine, like the abuse of writ doctrine, `refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.' . . . A corollary to the habeas statute's exhaustion requirement, the doctrine has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.").
Petitioner's Objections 1 and 2.
Petitioner first objects that Magistrate Judge Molzen failed to construe Petitioner's pro se state pleadings liberally, see Doc. 49 at 2-5, and I view this contention in conjunction with his second objection, which takes issue with her finding that the "rape" issue was not raised in the state proceedings as a separate due process claim. Instead, the magistrate judge found that the claim was only pursued in the context of an ineffective assistance of counsel claim. See Doc. 47 at 8; Doc. 49 at 6-9.
Reviewing the objections de novo, I have carefully examined the document Petitioner asserts was not liberally-construed. In the first round of state post-conviction proceedings, the Petitioner was represented by counsel. His attorney argued that using Petitioner's rape-based post-traumatic stress disorder as a basis for sentencing Petitioner as an adult could violate due process. However, she only raised the issue within the ineffectiveness of counsel claim:
It was ineffective assistance of counsel not to argue that to consider this state-created injury as a basis for finding Colin not amenable to treatment violated due process. Colin was prejudiced
by counsel's failure to make this argument because the Court used the rape-PTSD evidence as a basis for sentencing Colin as an adult. In essence, the State injured Colin and then used the injury to deprive Colin of a liberty interest (a juvenile disposition). In the evidentiary hearing on this habeas, counsel will show that Colin's
reluctance to talk about being raped is a natural consequence of being raped. It is fundamentally unfair for the State to use its own negligence as a basis for punishing Colin.
Doc. EE at 15-16 (emphasis added);
see also Exh. GG at 10-11. Having myself employed the requisite liberal standard of review, I agree with that conclusion Respondents and Judge Molzen reached. Habeas counsel only raised the rape issue as an ineffectiveness claim.
The relevant portion of Petitioner's pro se state petition, which he labeled "C-Ground 3" asserts:
Not [sic] evidentiary hearing — needed to bring up points not raised. Rape was used in negative light for sentencing — the testimony did not indicate that this would affect further criminal acts — Judge did use this point to sentence — this can be proved this violated my rights under state and US constitution.
Exh. JJ at 4. In the margin, with a big arrow pointing back to the above-quoted portion, Petitioner stated: "Ground three was raised in my prior state habeas petition intended to raise the other issue there. My lawyer filed a motion to amend to include there, but both the motion and the petition were denied."
Id. It thus appears that Petitioner is referring to the fact that habeas counsel raised the "Ground three" rape issue in the petition she prepared, and that she would have found other points had she been given the opportunity to investigate and file an amended petition.
To reach the conclusion urged by Petitioner in his objections, this Court would have to overlook the margin note that he plainly intended to be considered in conjunction with the issue. I do not believe the obligation to review pro se pleadings liberally requires the Court to ignore the context in which the claim was made. To do so would cross the line from liberal construction to improper advocacy. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (While pro se pleadings should be liberally construed, "[a]t the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant."). Accordingly, I reject Petitioner's first two objections. The "rape" issue will proceed only as an ineffectiveness claim.
Respondents' Objection 3/Petitioner's Objection 3.
Petitioner contends that for a variety of reasons, his guilty plea was involuntary. Magistrate Judge Molzen found that factors such as his mental capacity, medication status, inexperience with the criminal justice system, were not in a "significantly different legal posture" from those factors that he raised in his pro se state petition. There, Gonzales relied on such factors as his immaturity as a fifteen year old who did not know whether he would be sentenced as an adult and did not understand the nature of the rights he was waiving. Simply put, I agree with the magistrate's finding that factors such as Gonzales' mental capacity, medication status, and inexperience with the criminal justice system were sufficiently raised in the state courts and are not procedurally-defaulted.
Petitioner also argues in part that his guilty plea was involuntary because he was promised he could go home following the plea hearing. The Second Amended Petition and Affidavit in support of an evidentiary hearing clearly indicate that the promise was made by his attorney and Judge Molzen construed the claim as such. See Doc. 42 at 5 ("his plea was induced by the promise that Colin could go home from . . . where he had been raped, if he entered a plea, but not otherwise."); Doc. 31, Exh. C, ¶ 2 ("I was told by my lawyer that the only way I could go home was if I pled and that he would attempt to delay the proceedings"). She found that this assertion of "attorney coercion" rendered the claim significantly different from that presented to the state court. Thus, the "attorney coercion" basis for vitiating the voluntariness of the plea was rejected as both unexhausted and procedurally-defaulted. See Doc. 47 at 14-15.
Petitioner now asserts that the promise was made by the prosecutor and that the magistrate judge
mischaracterizes his claim as an attorney coercion claim. Colin does not claim that he was forced or coerced by his counsel to accept the plea offer. Rather, he claims that in light of his cognitive and psychiatric deficits and the brutality inflicted on him while in state custody, the prosecutor's promise that he could go home improperly induced his plea.
Doc. 49 at 9. He further argues that "[i]mproper promises of the prosecution that may have contributed to an involuntary plea are relevant to the totality of the circumstances analysis."
Id. at 10. Thus, he maintains, evidence of a promise on the part of the prosecutor does not put the matter in a significantly different legal posture, particularly since habeas counsel was not permitted to develop the claims at the state court level. Moreover, Petitioner told the trial judge at sentencing that he only plead guilty so that he could go home.
See id. at 11-15 (citing sentencing hearing tape).
I find that whether cast as "coercion" by either defense counsel or the prosecutor, the claim is in a significantly different legal posture than those raised before the state court. I therefore reject the Respondents' objection and also Petitioner's to the extent he equates "inducement" with "coercion."
However, that is not to say any evidence of a promise to go home is irrelevant. As I understand it, Petitioner's competency and mental status were directly at issue in the state court proceedings. Indeed, one of the claims habeas counsel pursued was that trial counsel was ineffective in not ordering tests to determine if Petitioner had organic brain damage. See Exh. EE at 6-9, 14-15. Any alleged promise is relevant as it relates to Petitioner's mental condition and understanding, in light of his statement to the trial judge. Therefore, the evidence is admissible on the voluntariness issue but cannot form the basis of an independent legal theory of "coercion" which alone could vitiate the voluntariness of the plea.
Respondents' Objections 4 and 5/Petitioner's Objection 4.
Contrary to Respondents' assertion, nothing on the face of New Mexico Rule 5-802 prohibited the trial judge from granting habeas counsel additional time to investigate and file an amended petition. Also, since the propriety of a stay of federal habeas proceedings was not (and is still not) settled, habeas counsel had reason to operate under the assumption that pressing federal deadlines may be deemed applicable. Indeed, as it turned out, Petitioner returned to federal court within the one-year limitations period. See Doc. 47 at 7, 15-17; Doc. 48 at 6-7; Doc. 44 at 20. Thus, for the same reasons as the Magistrate Judge, I find that § 2254(e)(2) is not applicable and therefore reject Respondents' Objection 4.
While Petitioner does not object to Judge Molzen's conclusion that the request for an evidentiary hearing is premature, see Doc. 47 at 18, he "requests the opportunity to present evidence in support of his claims at an evidentiary hearing prior to briefing on the merits so that he may incorporate argument in his briefs concerning record evidence supporting his claims," Doc. 49 at 15. Respondents appear to object to Judge Molzen's decision to have the parties brief issues after the record is expanded, and then determine whether an evidentiary hearing is warranted. See Doc. 47 at 18; Doc. 48 at 7.
The Court considered the possibility of holding an evidentiary hearing first as a means of possibly expediting matters, and had Magistrate Judge Molzen ask the parties for their positions on that issue. Having been apprized of the parties' positions, I conclude that the position taken in the proposed findings is appropriate and, therefore, Magistrate Judge Molzen shall review the expanded record first to determine whether an evidentiary hearing is warranted.
THEREFORE,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Respondents' objections (Doc. 48) are OVERRULED;
2. Petitioner's objections (Doc. 49) are OVERRULED;
3. The Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 47) is ADOPTED;
4. Petitioner's motion for an order to show cause (Doc. 37) is DENIED AS MOOT;
5. Respondents' motion to dismiss (Doc. 43) is DENIED IN PART AND GRANTED IN PART;
6. Petitioner's "due process" claim is RECAST as an ineffectiveness claim;
7. To the extent Petitioner claims his plea was involuntary because of attorney or prosecutor "coercion," the claim is DISMISSED WITH PREJUDICE as unexhausted and procedurally-defaulted;
8. The parties shall fully brief the merits of all of the claims and file any necessary materials to expand the record with those briefs. Given the posture of this case, Petitioner is directed to open the briefing. Petitioner's brief-in-chief is due Monday, April 4, 2005. Respondents' response brief is due Monday, June 6, 2005. Petitioner's reply brief is due Tuesday, June 21, 2005. In the event Petitioner's reply introduces new factual arguments and/or evidence from that raised in the brief-in-chief, Respondents have permission to file a surreply brief and must do so by Wednesday, July 6, 2005.