Torres v. Santistevan

NOE TORRES, Petitioner, v. DWAYNE SANTISTEVAN, et al, Respondents.

CV 19-00209 JB/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 4, 2019

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDATION

This matter comes before the Court on Mr. Torres' Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [Doc. 1], filed on March 11, 2019; Motion to Proceed in Forma Pauperis [Doc. 2], filed March 11, 2019; and Motion for Appointment of Counsel [Doc. 5], filed March 15, 2019. On March 13, 2019, United States District Judge James O. Browning referred the matter for recommended findings and final disposition to United States Magistrate Judge Jerry H. Ritter. [Doc. 4]. Upon review of the record, I propose to find that Mr. Torres falls short on each required showing and recommend, after consideration of the parties' objections if any, that the Court deny Mr. Torres' requested relief.

I. FACTUAL BACKGROUND¹

Early on the morning of September 15, 2005, nine shots were fired through a bedroom window of an apartment in Clovis, killing ten-year-old Carlos Perez. [Doc. 8-2, p. 24]. Carlos had been sleeping in the bedroom he shared with his older brother, Ruben Perez, who was the intended victim of the shooting. [Id.].

Two distinct groups of actors were involved in the shooting. [Id.]. The first group rode in a Suburban to apartment complex where the shooting took place. [Id.]. This group included Orlando Salas, Demetrio Salas, David Griego, and Melissa Sanchez. [Id.]. The second group arrived at the apartment complex in a Camry and included Mr. Torres, Edward Salas, Krystal Anson, and Ashley Garcia. [Id.].

The day before the shooting Orlando Salas and Ruben Perez were involved in an altercation at their high school. [Id.]. Later that night or in the early hours of September 15^th, Orlando and his brother Demetrio picked up Melissa Sanchez and David Griego, in the Salas' blue and white Suburban. [Id.]. They drove into an alleyway near the apartment complex where Ruben lived. [Id.]. Orlando and Demetrio said they wanted to get that "sewer rat," referring to Ruben. [Id.].

Demetrio then dropped off Melissa and Orlando at his friend Eric Gutierrez's house nearby. [Id., p. 25]. Demetrio said he and David were "going to go do a mission" and left. [Id.]. The two returned approximately five minutes later. [Id.]. Demetrio was holding a gun and appeared to be "on an adrenaline rush." [Id.]. He said, "We just went and blasted nine rounds into that sewer rat's house, pow, pow, pow, pow." [Id.]. He told Melissa not to touch him because he had gunpowder residue on him. [Id.]. Eric turned on his police scanner, and they heard that a child had been shot and that police were looking for a blue and white Suburban. [Id.]. Eric heard someone say, "Oh we got the wrong ... guy." [Id.].

In the early hours of September 15, 2005, Mr. Torres, along with Krystal Anson, Ashley Garcia, and Edward Salas (Demetrio and Orlando Salas' older brother) rode in Krystal's while Camry to the apartment complex where Ruben Perez lived. [Id.]. They parked the Camry on the street near the apartments. [Id.]. Mr. Torres and Edward got out and told Krystal and Ashley to stay in the car. [Id.]. The Salas' Suburban was parked down the street from the Camry. [Id.]. Twopeople got out of the Suburban and met Mr. Torres and Edward at the apartment complex. [Id.]. Mr. Torres, Edward, and the two from the Suburban shook hands then disappeared from the sight. [Id.].

Krystal and Ashley got out of the Camry and walked to a nearby park. [Id.]. The girls were talking and smoking cigarettes at the park when they heard gunshots and ran back to the Camry. [Id. at p. 26]. Mr. Torres and Edward also ran to the Camry. [Id.]. When Mr. Torres got to the car he was described as excited and smelling like "burned matches." [Id.]. Mr. Torres got into the driver's seat of the Camry, Edward got into the front passenger seat, the girls got into the back seat, and they left the scene. [Id.]. Edward received a phone call and Mr. Torres turned up the volume on the radio but Krystal heard Edward say to Mr. Torres, "We didn't get him. We got the little boy." [Id.]. Mr. Torres replied, "Are you sure it was the little boy?" [Id.].

The next day, Mr. Torres and his girlfriend fled to Mexico. [Id.].

II. PROCEDURAL BACKGROUND

On October 7, 2005, Mr. Torres was indicted on one count of first degree murder, contrary to NMSA 1978, Section 30-2-1(A) (1994), one count of attempted first degree murder, contrary to NMSA 1978, Sections 30-2-1(A) and 30-28-1 (1963), and one count of shooting at a dwelling or occupied building, contrary to NMSA 1978, Section 30-3-8(A) (1993). [Doc. 12-1, pp. 26-27].

Mr. Torres failed to appear for arraignment on October 17, 2005, and a bench warrant was issued on October 19, 2005. [Doc. 12-1, p. 38]. Mr. Torres remained at large until early 2012, when he was apprehended in Mexico. [Doc. 12-1, p. 43]. On July 11, 2012 Mr. Torres was extradited from Mexico and was subsequently arraigned on the charges in the October 7, 2005 indictment. [Doc. 12-1, p. 67].

On January 11, 2013, a Superseding Indictment was filed which charged Mr. Torres withone count of first degree murder, contrary to Section 30-2-1(A), one count of attempted first degree murder, contrary to Sections 30-2-1(A) and 30-28-1, one count of shooting at a dwelling or occupied building, contrary to Section 30-3-8(A), one count of conspiracy to commit first degree murder, contrary to Section 30-2-1(A) and NMSA 1978, Section 30-28-2 (1979), one count of conspiracy to shoot at a dwelling or occupied building, contrary to Sections 30-3-8(A) and 30-28-2, possession of a firearm by a felon, contrary to NMSA 1978, Section 30-7-16 (2001), amended by NMSA 1978, § 30-7-16 (2019), and intimidation of a witness, contrary to NMSA 1978, Section 30-24-3(A)(3) (1997). [Doc. 12-1, pp. 176-178]. A jury found Mr. Torres guilty on all counts. [Doc. 12-4, pp. 2-8]. Mr. Torres was sentenced to a total term of life imprisonment plus 31.5 years, which included a three-year habitual offender enhancement. [Doc. 12-4, pp. 85-88].

Mr. Torres appealed his conviction to the New Mexico Supreme Court arguing that: (1) several of the convictions violated constitutional protections against double jeopardy [Doc. 1, p. 97]; (2) the convictions were not supported by sufficient evidence [Doc. 1, p. 97]; (3) the district court erred in not allowing him to cross-examine a witness about a prior bad act [Doc. 1, p. 97]; (4) his constitutional rights were violated when the district court did not allow him to attend sidebar conferences with his counsel and because he was shackled to the table during the trial [Doc. 1, pp. 97-98]; and (5) a prior felony was unlawfully used to impose a habitual offender sentence enhancement [Doc. 1, p. 98].

The New Mexico Supreme Court affirmed Mr. Torres' convictions for first-degree murder, attempted first-degree murder, and conspiracy to commit first-degree murder, reversed Mr. Torres' convictions for shooting at a dwelling and conspiracy to shoot at a dwelling as violative of constitutional protections against double jeopardy, and vacated the habitual offender enhancement of his sentence. [Doc. 1, p. 98].

On March 20, 2018, the state district court entered an Amended Judgment, Sentence, and Commitment to reflect the reversal of Mr. Torres' convictions for shooting at a dwelling and conspiracy to shoot at a dwelling and revising his sentence to life imprisonment plus 19.5 years, with credit for the period for which Mr. Torres had already been confined. [Doc. 1, pp. 127-130].

Subsequently, Mr. Torres sought post-conviction relief by filing a Petition for a Writ of Habeas Corpus in state court on July 12, 2018. [Doc. 1, pp. 113-117]. Mr. Torres argued that: (1) he was denied effective assistance of counsel [Doc. 1, pp. 119-120]; (2) the indictment should have been dismissed due to violations of the Interstate Agreement on Detainers (IAD), NMSA 1978, § 31-5-12 (1971) [Doc. 1, p. 121]; (3) the trial court erred in denying his pro se motion for recusal [Doc. 1, p. 122]; (4) the indictment should have been dismissed because a State's witness manipulated the grand jury [Doc. 1, p. 124]; (5) he was unconstitutionally subject to pretrial detention at the Penitentiary of New Mexico [Doc. 1, pp. 124-125]; and (6) he should be granted leave to amend his petition to include "any additional issues [in the event he received the] full discovery, tape proceedings and copied transcript proceeding" that he requested. [Doc. 1, p. 126]. The state district court summarily dismissed Mr. Torres' habeas corpus petition on October 9, 2018. [Doc. 1, pp. 166-170]. Mr. Torres' subsequent Petition for a Writ of Certiorari was denied by the New Mexico Supreme Court on November 7, 2018. [Doc. 1, p. 185].

Mr. Torres filed the instant Petition on March 11, 2019, bringing forth the claims raised in his direct appeal to the New Mexico Supreme Court as well as the claims brought in his state habeas petition. [Doc. 1, pp. 3-45]. Specifically, Mr. Torres raises the following grounds for relief: (1) the trial court erred in denying his motion for directed verdict because there was insufficient evidence to support his convictions [Doc. 1, pp. 5, 16-17]; (2) his convictions violate constitutional protections against double jeopardy [Doc. 1, pp. 7, 18-19]; (3) the trial court erred in using a time-barred prior felony conviction to impose a habitual offender sentence enhancement [Doc. 1, pp. 8, 20];² (4) the trial court erred in not allowing him to cross-examine a state's witness about a prior bad act [Doc. 1, pp. 10, 21-22]; (5) the trial court erred in allowing him to be shackled to the table during trial [Doc. 1, pp. 23-24]; (6) he was denied effective assistance of counsel [Doc. 1, pp. 26-27]; (7) the indictment should have been dismissed due to IAD violations [Doc. 1, pp. 28-29]; (8) the trial court erred in denying his ...