Gwynne v. Martinez

1

JASON MICHAEL GWYNNE, Petitioner, v. RICK MARTINEZ and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.

Civ. No. 21-333 KG/SCY

United States District Court, D. New Mexico

January 17, 2024

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

Steven C. Yarbrough United States Magistrate Judge

This Proposed Findings and Recommended Disposition (“PFRD”) addresses Petitioner Jason Michael Gwynne's “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.” Doc. 1. The Honorable Kenneth J. Gonzales referred this case to me to conduct hearings, if warranted, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 4. Having reviewed the petition, I recommend finding that some claims are procedurally defaulted, and therefore barred from review by this Court. As to the remaining claims, I recommend finding that both the exhausted and unexhausted claims fail on the merits. Therefore, I recommend denying this petition.

BACKGROUND

1. Factual Background

To provide context regarding Mr. Gwynne's claims, I repeat the factual background from the New Mexico Court of Appeal's order on direct appeal:

In January 2013 Defendant [Jason Gwynne] at the time thirty-five years old, was living in a one-bedroom trailer with his then-sixteen-year-old stepdaughter (Stepdaughter) whose mother had passed away in September 2012. Defendant allowed a sixteen-year-old friend (Friend) of Stepdaughter who had run away from home to stay with them. Stepdaughter slept on the pullout couch in the living room, while Defendant and Friend slept in the only bedroom. One night, Stepdaughter observed what she believed was Friend performing oral sex on Defendant in the trailer's bedroom and, after confronting Friend, reported the incident to an adult and later spoke with law enforcement. Stepdaughter reported to law enforcement that Friend and Defendant were “having a sexual affair” and that she had seen “naked pictures of unknown girls [of unknown age] on Defendant's cell phone.”

Law enforcement conducted a search of Defendant's residence, seized Defendant's phone, and downloaded three videos depicting Friend engaged in sexual acts. Defendant was initially charged with one count of sexual exploitation of children (possession) contrary to NMSA 1978, Section 30-6A-3(A) (2007, amended 2016). After law enforcement officers further investigated the matter and obtained evidence indicating that Defendant was the male participant in what the officers believed were self-recorded videos where Defendant was engaged in sexual acts with Friend, Defendant was additionally charged with two counts of sexual exploitation of children (manufacturing) in violation of Section 30-6A-3(D). Defendant denied both having a sexual relationship with Friend and that he was the male participant in the video. At trial, the central issue to be decided was the identity of the male participant in the videos.

The State's first witness was Stepdaughter, whose testimony primarily established (1) when and why Friend had come to live with Stepdaughter and Defendant, (2) where Friend slept in the trailer, and (3) what prompted Stepdaughter to make a report concerning Friend and Defendant to authorities. Additionally, after the district court denied Defendant's motion in limine to exclude testimony by Stepdaughter regarding her observation of a prior sexual encounter between Defendant and Friend, Stepdaughter was allowed to testify that she once observed Friend performing oral sex on Defendant in the bedroom of the trailer.

The State next called Friend, who testified that she was the female in the videos and that Defendant was the male. Friend admitted that she had previously stated that the male in the video was someone other than Defendant, but at trial she testified that her prior statement was a lie. Friend stated that she was aware that the video was being made and that Defendant was the person taking the video using his own cellular phone.

Deputy Victor Hernandez of the Lea County Sheriff's Department described the investigation that followed Stepdaughter's report. He testified that when he went to Defendant's home to investigate and question[] Defendant Defendant denied having sexual intercourse with Friend and told Deputy Hernandez that Friend slept on the couch. Deputy Hernandez's testimony also laid the foundation for the admission of State's Exhibit 1-the videos downloaded from Defendant's phone, which Deputy Hernandez seized during his investigation.^[1]

Detective Mark Munro of the Hobbs, New Mexico Police Department testified regarding the videos themselves and how he came to suspect that Defendant was both the male participant in the videos and the person who manufactured the videos. He explained that “the angle and the manner [in] which [the video] was recorded was consistent with a participant recording the video.” He testified that while only the face of the female in the videos was “readily apparent,” the abdomen and genitals of the male participant were visible and contained what Detective Munro described as “a consistent abnormality to the abdomen, ... some sort of a scar or possibly a tattoo” in each of the videos. He then explained that as part of his investigation he reviewed photographs of Defendant's unclothed torso that were taken by Deputy Hernandez and watched the videos again, comparing the images in the video of the male participant's abdominal area to the photographs of Defendant. Because Friend, who initially told law enforcement that Defendant was the male in the videos, changed her story and identified another person as the male participant, Detective Munro also personally examined and photographed the torso of the other suspect in order to compare it to the videos. Detective Munro explained that he “freeze frame[d] and pull[ed] ... screenshot[s]” from the videos in order to be able to compare the images in the videos with the photographs of Defendant and the other suspect. Based on his comparison of the videos-including the screenshot images-and the photographs, Detective Munro believed that the photograph of Defendant was “consistent” with the person that he saw in the video and that the other suspect was not the person in the video.

The district court admitted, and the State published to the jury, the videos in their entirety, the photographs of Defendant's and the other suspect's respective torsos, and the screenshot images taken from the three videos showing the male participant's abdominal area. The jury found Defendant guilty on all counts.

State v. Gwynne, 2018-NMCA-033, ¶¶ 2-8, 417 P.3d 1157, 1161-63 (internal footnotes omitted).

2. Procedural Background

On May 3, 2013, a criminal information charged Mr. Gwynne with one count of sexual exploitation of children (possession). Doc. 10-1 at 1 (Ex. A).^[2] An amended criminal information, filed September 5, 2013, charged Mr. Gwynne with three counts of sexual exploitation of children (possession), id. at 12 (Ex. D), which was corrected in the Second Amended Corrected Criminal Information filed September 19, 2013, to one count of sexual exploitation of children (possession) and two counts of sexual exploitation of children (manufacturing), id. at 16 (Ex. F). The Corrected Third Amended Criminal Information, filed on January 7, 2014, also charged Mr. Gwynne with one count of possession and two counts of manufacturing. Id. at 21 (Ex. I), 26 (Ex. K). On June 3, 2014 a jury returned guilty verdicts on all three charges. Id. at 52 (Ex. N), 53 (Ex. O), 54 (Ex. P). The Fifth Judicial District Court of New Mexico sentenced Mr. Gwynne to incarceration for 19 years, 3 months, and 3 days, followed by 5 to 20 years of parole. Id. at 60-61 (Ex. T).^[3]

On August 27, 2014, Mr. Gwynne, through counsel, appealed his conviction to the New Mexico Court of Appeals. Id. at 63 (Ex. U). On this direct appeal, Mr. Gwynne raised two issues: (1) his sentence violated procedural due process and (2) the inconsistencies of the penalty statutes violate substantive due process and equal protection. Id. at 79 (Ex. X). After the New Mexico Court of Appeals proposed a summary disposition given Mr. Gwynne's failure to develop these issues, id. at 98-105 (Ex. AA), Mr. Gwynne moved to amend his docketing statement to add new issues on appeal. Id. at 107 (Ex. BB). The appeals court allowed the amendment, id. at 150 (Ex. CC) and, based on Mr. Gwynne's brief in chief, described Mr. Gwynne as raising the following issues: (1) multiple evidentiary issues, including improper opinion testimony from Detective Munro regarding altered screenshot images, improper testimony from Deputy Hernandez as to a second victim (or ineffective assistance of counsel for failing to seek a mistrial or curative instruction following testimony from Deputy Hernandez regarding a second victim), improper reliance by the State on testimony of prior sexual contact to prove conformity, and cumulative error; (2) double jeopardy between the possession and manufacturing count; (3) equal protection and substantive due process violations; and (4) insufficient evidence to support the convictions.^[4] Id. at 151-206 (Ex. DD). On February 14, 2018, the New Mexico Court of Appeals affirmed on all grounds. Id. at 286-327 (Ex. GG). Mr. Gwynne then filed a petition for writ of certiorari with the New Mexico Supreme Court, raising the same issues as addressed by Court of Appeals, id. at 328-30 (Ex. HH), which the Supreme Court denied, id. at 344-45 (Ex. II).

On May 18, 2018, Mr. Gwynne filed a pro se petition for writ of habeas corpus in the state district court. Id. at 346-410 (Ex. JJ). He raised four issues, each containing sub-issues: (1) illegal search and seizure based on incorrectly dated...