Chavez v. Horton

MARIO CHAVEZ, Petitioner, v. VINCENT HORTON, WARDEN, and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.

No. 1:19-cv-01151-KWR-LF

United States District Court, D. New Mexico

February 23, 2023

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

Laura Fashing United States Magistrate Judge

THIS MATTER comes before the Court on Mario Chavez's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, filed on December 6, 2019. Doc. 1. On September 29 2021, Mr. Chavez, now with counsel, filed a Supplemental Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. Doc. 22. Respondents filed an answer, as ordered by the Court. Docs. 24, 30. Mr. Chavez filed a reply. Doc 32.^[1]The Honorable District Judge Kea Riggs referred this case to me to pursuant to 28 U.S.C §§ 636(b)(1)(B) and (b)(3) to conduct hearings, if warranted, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 23. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court deny Mr Chavez's petition and supplemental petition with prejudice.

I. Background Facts and Procedural Posture

On February 20, 2006, a jury found Mario Chavez guilty of first-degree murder (both felony murder and the alternative charge of deliberate killing), second-degree armed robbery, and five counts of third-degree tampering with evidence, in connection with the fatal shooting of Garland Taylor, an Albuquerque-area realtor who was showing a home when he was killed on August 16, 2004. Doc. 30-1 at 57-66, 75-76, 81 (Exhs. K-T, W, Y). Mr. Chavez was sentenced to a total term of life imprisonment, plus 25 years. Doc. 30-1 at 76 (Exh. Y).

A. Direct Appeal

On September 14, 2006, Mr. Chavez filed a direct appeal to the New Mexico Supreme Court (“NMSC”).^[2] Doc. 30-1 at 79-92 (Exh. Y). Mr. Chavez raised the following three issues in his brief in chief: (1) “the introduction of a plethora of irrelevant and prejudicial evidence denied [him] a fair and reliable trial”^[3]; (2) the trial court erred in admitting as excited utterances/present sense impressions incriminating statements that his co-defendant, Eloy Montano, made to his wife, Dawn Pollaro, hours after the murder of Garland Taylor; (3) the conviction of five counts of tampering with evidence violated the double jeopardy clause. Doc. 30-1 at 119-42 (Exh. DD). On April 5, 2010, the NMSC affirmed Mr. Chavez's convictions.

Doc. 30-1 at 202-24 (Exh. GG).^[4] The NMSC found that the district court did not abuse its discretion in admitting any of the evidence Mr. Chavez alleged was irrelevant and/or prejudicial, and provided a thorough analysis of the legal and factual basis for its decision. Doc. 30-1 at 210-18 (Exh. GG). The NMSC also found that the trial court did not abuse its discretion in admitting three out-of-court statements introduced through the testimony of Dawn Pollaro, and it provided a thorough analysis of the legal and factual basis for its decision. Doc. 30-1 at 218-23 (Exh. GG).

B. First State Habeas Petition

On December 1, 2010, Mr. Chavez, proceeding pro se, filed his first state habeas petition. Doc. 30-1 at 225-28; Doc. 30-2 at 1-19 (Exh. II). Mr. Chavez subsequently obtained counsel. Doc. 30-2 at 22 (Exh. LL). On February 6, 2017, counsel filed an amended first state habeas petition raising the following arguments: (1) trial counsel was ineffective for (a) relying on the results of polygraph exams “because the validity of the tests [was] highly suspect”; (b) rejecting a plea offer without communicating the plea to Mr. Chavez; and (c) advising Mr. Chavez to reject the plea offer after falsely advising Mr. Chavez that he had “passed” the polygraph exam; (2) the trial court abused its discretion in admitting the polygraph results; and (3) the cumulative effect of the errors of counsel and the court resulted in the denial of a fair trial. Doc. 30-2 at 3652 (Exh. MM). The amended petition also adopted and restated the arguments raised in Mr. Chavez's pro se petition: (1) trial counsel was ineffective for failing to obtain qualified experts or witnesses regarding polygraph testing and regarding “the presence of [Mr. Chavez] with his computer at a location and records related to a call just four minutes thereafter to the deceased's home telephone from a payphone several miles away, and regarding the appearance of the deceased's wallet at a community center in Tucson, Arizona three days later”; (2) trial counsel gave Mr. Chavez inadequate or unreasonable advice to induce him to testify; (3) trial counsel had a conflict of interest; (4) trial counsel generally failed to prepare adequately for trial. Doc. 30-2 at 26 (Exh. MM).

Mr. Chavez, with newly appearing contract counsel, then filed an Addendum to [the] Amended Petition for Writ on Habeas Corpus. Doc. 30-2 at 363, 365-72 (Exhs. OO, PP). This addendum further challenged the trial court's admission of Eloy Montano's statements to Dawn Pollaro under the “excited utterance” exception to the rule against hearsay. Specifically, Mr. Chavez argued that both trial counsel and appellate counsel were ineffective for failing to “raise the proper legal arguments supporting exclusion of the excited utterance.” Doc. 30-2 at 365 (Exh. PP). Mr. Chavez further argued that the admission of Eloy Montano's statements to Dawn Pollaro violated his “right to confrontation, and his right to due process.” Doc. 30-2 at 366 (Exh. PP).

The Second Judicial District Court held an evidentiary hearing on Mr. Chavez's first state habeas petition on January 8 and 10, 2019. See Doc. 30-2 at 391 (Exh. SS). Mr. Chavez then filed Petitioner's Closing Arguments for Habeas Corpus Evidentiary Hearing. Doc. 30-2 at 391413 (Exh. SS.). On September 6, 2019, the Second Judicial District Court denied Mr. Chavez's first state habeas petition. Doc. 30-2 at 427-42 (Exh. VV). The court set forth a detailed basis for its denial in a reasoned decision, citing both law and facts. Id.

Mr. Chavez filed a petition for writ of certiorari with the NMSC.^[5] Doc. 30-2 at 443-53 (Exh. WW). The NMSC summarily denied the petition. Doc. 30-3 at 105 (Exh. XX). Mr. Chavez filed a motion asking the NMSC to reconsider its denial of the petition. Doc. 30-3 at 109-112 (Exh. ZZ). The NMSC summarily denied this motion too. Doc. 30-3 at 119 (Exh. EEE).

C. Second State Habeas Petition

On March 25, 2020, Mr. Chavez, again proceeding pro se, filed his second state habeas petition. Doc. 30-3 at 120-72 (Exh. FFF). Mr. Chavez filed two supplements to this petition. Doc. 30-4 at 97-112 (Exh. III), 159-73 (Exh. LLL).

On January 22, 2021, the Second Judicial District Court entered an order denying Mr. Chavez's second state habeas petition. Doc. 30-4 at 270-75 (Exh. NNN). The court read Mr. Chavez's petition as raising the following issues:

a. Petitioner claims ineffective assistance of counsel from counsel's failure to object on confrontation grounds to the statements of Eloy Montano. Similarly, Petitioner claims appellate counsel failed to investigate or raise the issue regarding the Confrontation Clause;

b. Petitioner contends trial counsel was operating under a conflict of interest because, at the evidentiary hearing, trial counsel noted that to do nothing for Petitioner's defense would have been malpractice. Based on this statement, Petitioner argues trial counsel put his own interests before Petitioner;

c. Under Rule 11-410, the polygraph results should never have been admitted as they were statements made for purposes of plea negotiations and trial counsel should have objected to their admission; d. Appellate counsel was ineffective for failing to investigate and present the denial of Petitioner's confrontation rights; and e. Habeas counsel's actions were detrimental to Petitioner's claims.

Doc. 30-4 at 271-72 (Exh. NNN). The court summarily dismissed Mr. Chavez's claim against his habeas counsel regarding the hiring of an expert for failing “to allege what expert could have been hired, the testimony that would have been provided, or that an expert would have changed the result.” Doc. 30-4 at 272 (Exh. NNN). And, with the exception of Mr. Chavez's Confrontation Clause claims, the court dismissed all of Mr. Chavez's other claims because they had already been adjudicated by the court. Doc. 30-4 at 272-73 (Exh. NNN). The court found that Mr. Chavez was not entitled to relief on his Confrontation Clause claims “because the files, pleadings, and records show that it was trial counsel who sought the admission of Eloy Mont[ano]'s statements and argued against the admission of the entirety of those statements.” Doc. 30-4 at 273 (Exh. NNN). The court noted that the strategy of Mr. Chavez's trial counsel “was to show that Eloy Montano was a liar, to discredit him as a witness, and to shift the focus from Petitioner as the shooter to Eloy.” Doc. 30-4 at 273 (Exh. NNN). The court analyzed Mr. Chavez's Confrontation Clause claims as follows:

15. Although Petitioner continuously asserts Eloy Montano was granted use immunity, the record does not support this assertion. The Statement of Issues indicates no use immunity had been granted and a September 30, 2005, notice filed by the State indicated use immunity was not forthcoming. Petitioner's assertion that Eloy Montano was granted use immunity is based on the use immunity granted on February 1 2006; however, this grant of immunity was for the testimony of Victoria Chavez, not Eloy Montano.

16. On January 12, 2006, Petitioner moved for the admission of certain statements of Eloy Montano, arguing the statements affected the state of mind and subsequent actions of law enforcement officers. The record indicates Petitioner sought to use the statements Eloy Montano made to law enforcement

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