Musacco v. Franco

BEAU JAMES MUSACCO, Petitioner, v. GERMAN FRANCO, et al., Respondents.

Civ. No. 14-683 MV/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 30, 2020

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Petitioner's Motion for Relief from Judgment re: Final Order and Order Adopting Report and Recommendations, his Motion for an Order granting the aforementioned motion, and his Motion for a Hearing. Docs. 62, 64, 69. Having considered Petitioner's motions (docs. 62, 64, 69) and Respondents' responses (docs. 67. 70), I DENY Petitioner's Motion for a Hearing (doc. 69) and RECOMMEND that the Court deny Petitioner's other two Motions (docs. 62, 64).

In so recommending, I find the following: (i) one claim in Petitioner's motion is a second or successive habeas petition over which the Court does not have jurisdiction; (ii) transferring this claim to the Tenth Circuit for consideration is not in the interest of justice; and (iii) none of Petitioner's remaining claims establish an extraordinary circumstance that requires the Court to vacate its final order (doc. 58) and final judgment (doc. 57) and afford Petitioner the chance to file objections to my proposed findings and recommended disposition (PFRD) (doc. 55).¹

I. BACKGROUND

i. State Proceedings: Trial, Appeal, and Post-Conviction Review

On January 18, 2007, a New Mexico grand jury indicted Petitioner on, inter alia, two counts of willful and deliberate first-degree murder in violation of N.M. Stat. Ann. § 30-2-1(A)(1), one count of fourth-degree tampering with evidence in violation of N.M. Stat. Ann. § 30-22-5(B)(4), and one count of concealing identity in violation of N.M. Stat. Ann. § 30-22-3. Doc. 14-3 at 53, 60. For approximately two years, Petitioner and the State of New Mexico engaged in discovery. See doc. 14-3 at 53-60. During this time, the Second Judicial District Court of New Mexico ordered Petitioner to submit to a buccal swab to gather his DNA (doc. 14-1 at 111-112), and Petitioner twice asked the court to replace his public defender for alleged inadequate representation. See docs. 14-2 at 29-32, 14-3 at 58.

Before trial, Petitioner filed motions in limine to suppress the buccal swab, its resulting DNA test, and evidence that the police had taken from his hotel room after hisarrest. Doc. 15-2; see also docs. 14-1 at 16-22, 14-3 at 76-84. After a hearing, Judge Sanchez denied these motions. Doc. 15-2 at 7, 24.

On March 6, 2009, a New Mexico jury convicted Petitioner on two counts of willful and deliberate first-degree murder, one count of fourth-degree tampering with evidence, and the misdemeanor offense of concealing identity. Docs. 14-1 at 2-5, 14-3 at 53. Later that year, the Second Judicial District Court of New Mexico sentenced Petitioner to a total term of sixty-two and a half years of imprisonment, to be followed by two years of parole. Doc. 14-1 at 4.

On July 21, 2009, Petitioner appealed his murder and evidence-tampering convictions to the New Mexico Supreme Court. Doc. 14-1 at 6. He argued the following: (i) a police officer's reentry into his hotel room shortly after his arrest violated both the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution as the reentry was neither pursuant to a warrant nor justified by an exception to the warrant requirement; (ii) the court-ordered buccal swab was the fruit of a poisonous tree because it relied upon evidence obtained from the aforementioned warrantless reentry of the hotel room as well as a warrantless search and seizure of Petitioner's DNA subsequent to his arrest; (iii) Judge Sanchez erred at trial by admitting into evidence the boots that police had taken from the hotel room over Petitioner's objection to their chain of custody; and (iv) the evidencepresented at trial was insufficient to support the convictions. See doc. 14-1 at 35-63, 105-06. The New Mexico Supreme Court affirmed Petitioner's convictions. Id. at 119.

On April 29, 2013, Petitioner filed a habeas petition in state court seeking to have his murder, evidence-tampering, and identity-concealment convictions vacated for ineffective assistance of trial counsel. Doc. 14-2 at 2. He argued that he had suffered prejudice from his trial attorney's failure to: (i) move to dismiss for speedy trial violations; (ii) move for a change of venue; (iii) present expert witness testimony as to his alleged inability to form the mens rea required for first-degree murder; or (iv) perform reasonably at trial. Id. at 2, 7-17. He further contended that he was a victim of systemic ineffective assistance of trial counsel because his counsel "was most likely inundated with other felony cases," which probably prevented his counsel from providing quality legal representation on his case. Id. at 7-8. On March 11, 2014, Judge Sanchez denied Petitioner's state habeas petition without an evidentiary hearing. Id. at 41-43. Later that year, the New Mexico Supreme Court denied Petitioner's petition for writ of certiorari. Doc. 14-3 at 51.

ii. Instant Federal Habeas Proceedings

On August 22, 2014, Petitioner filed a timely federal habeas petition asking the Court to vacate his murder, evidence-tampering, and identity-concealment convictions. Doc. 3 at 1, 21. Proceeding pro se, Petitioner articulated three categories of claims: (i) the five ineffective assistance of trial counsel claims that he had raised in his state habeaspetition (see id. at 6; doc. 55 at 4); (ii) the two claims of unlawful search and seizure, the claim of insufficient evidence, and the claim of unlawful admission of evidence, all of which he had raised on direct appeal of his conviction to the New Mexico Supreme Court (see docs. 3 at 7, 55 at 4); and (iii) a new claim that the state district judge had erred in denying his state habeas petition without an evidentiary hearing after Petitioner had declined to waive attorney-client privilege with respect to his trial counsel (see docs. 3 at 6, 11, 55 at 4-5). Later, when responding to Respondents' motion to dismiss, Petitioner, then represented by Mary (Molly) E. Schmidt-Nowara, recast this last claim as a claim of ineffective assistance of state habeas counsel. Doc. 55 at 5.

On August 3, 2016, I issued a PFRD that advised the Court to dismiss all of Petitioner's claims with prejudice. Id. at 35. In support of my recommendation, I found the following: (i) the state habeas court's dismissal of Petitioner's five claims of ineffective assistance of trial counsel was not contrary to, or an unreasonable application of, clearly established Federal law (id. at 23-28, 32); (ii) Petitioner's evidentiary claims of unlawful search and seizure and improper admission of evidence were not cognizable in a federal habeas petition; any error made by the state court in its application of state evidentiary law did not render Petitioner's trial so fundamentally unfair as to violate his right to due process; and the New Mexico Supreme Court's rejection of Petitioner's insufficiency of evidence claim was not contrary to, or an unreasonable application of, clearly established Federal law (id. at 23-28, 33-34); andfinally, (iii) Petitioner did not properly raise his claims of ineffective assistance of state habeas counsel since he had failed to plead it in his habeas petition (id. at 7).²

Petitioner had fourteen days to file an objection to my PFRD if he wished to preserve appellate review of this Court's final judgment. Id. at 35. He did not do so. Doc. 57 at 2. On December 4, 2017, the Court adopted my PFRD and issued a final order dismissing Petitioner's habeas petition with prejudice. Id. at 3; doc. 58.

On October 15, 2019, Petitioner requested a copy of the docket sheet and informed the Court that Ms. Schmidt-Nowara no longer represented him. Doc. 59. On December 30, 2019, Petitioner again informed the court that he was no longer represented by counsel and requested a copy of the docket sheet and all documents filed after May 26, 2017. Doc. 60. On December 31, 2019, the Court terminated Ms. Schmidt-Nowara's representation and mailed Petitioner the docket sheet and docket entries 57 through 60. This mailing did not include my PFRD (doc. 55) because it had been filed on August 3, 2016. On February 14, 2020, Petitioner requested that the Court provided him with, among other things, another copy of the docket sheet and copies of all entries filed in his case. Doc. 61.

On June 29, 2020, Petitioner filed the instant motion, asking the Court to vacate its final judgment under Fed. R. Civ. P. 60(b)(6) and grant him leave to file objections tomy PFRD. Doc 62 at 9. He argues that the following constitute the extraordinary circumstances required to reopen his case: (i) my finding that he had enjoyed an opportunity to litigate his unlawful search and seizure claims fully and fairly in state court despite the New Mexico Supreme Court applying state constitutional standards—rather than federal ones—to these claims (id. at 5-7); (ii) my refusal to hold oral argument on the above claims (id. at 5); (iii) the Court's failure to assess whether the state court's evidentiary rulings had violated his right to due process by rendering his trial fundamentally unfair (id. at 7); and (iv) the failure of Petitioner's federal habeas counsel to object to my PRFD, apprise Petitioner of the need to do so, or give him accurate information about the status of his case (id. at 2, 8).³

In support of his last claim, Petitioner asserts under oath that Ms. Schmidt-Nowara deceived him about the status of his case from approximately September 2016 until mid-to-late 2019. Id. at 2. During their periodic, if not regular, contact during this time, Ms. Schmidt-Nowara allegedly failed to inform Petitioner about my PFRD, the need to object to its contents, or their failure to do so. Id. Rather, she initially assured Petitioner that the Court had made no decision about his case. Id. Then, in early 2018, after the...