Opinion
No. CIV 09-0200 JB/GBW.
February 4, 2011
Frank J. Dombos, Western New Mexico Correctional Facility, Grants, New Mexico, Petitioner Pro Se.
Gary K. King, Attorney General for the State of New Mexico, Margaret McLean, Assistant Attorney General for the State of New Mexico, Santa Fe, New Mexico, Attorneys for the Respondents.
ORDER SUSTAINING IN PART AND OVERRULING IN PART PETITIONER'S OBJECTIONS
THIS MATTER comes before the Court on Petitioner Frank J. Dombos' Objections, filed November 8, 2010 (Doc. 107) ("Objections"), to the Magistrate Judge's Proposed Findings and Recommended Disposition, filed October 25, 2010 (Doc. 104) ("PFRD"). Because Petitioner Frank J. Dombos appears in this case pro se, the Court construes his pleadings and submissions liberally, holding them to a less stringent standard than the standard to which a party represented by counsel is held. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court has carefully reviewed the Objections. The Court will sustain in part and overrule in part F. Dombos' Objections.
ANALYSIS
As a preliminary matter, F. Dombos references his Motion for Hearing, filed October 12, 2010 (Doc. 100), and Affidavit, filed October 18, 2010 (Doc. 101), which requests that the Honorable Gregory B. Wormuth, United States Magistrate Judge, recuse himself from this case. See Objections at 2-5 (Doc. 107). Judge Wormuth issued a PFRD on Dombos' Motion for Hearing and Affidavit, recommending that the Court deny his motion. See Proposed Findings and Recommended Disposition at 1, filed November 4, 2010 (Doc. 105). The Court has filed a separate order regarding that issue, see Order Overruling Petitioner's Objections, filed January 27, 2010 (Doc. 123), so thus there is no need to address F. Dombos' concerns regarding these issues here.
The Court also filed an order, denying without prejudice F. Dombos' Motion for Appointment of Counsel, filed September 23, 2010 (Doc. 99), and sustaining F. Dombos' Objections, filed September 23, 2010 (Doc. 99), to Judge Wormuth's order denying F. Dombos' request to supplement the record. The Court will allow F. Dombos to supplement the record with additional evidence. Because the Court will allow F. Dombos to supplement the record, the Court will sustain F. Dombos' objections regarding the Court's failure to review all the evidence because it would not allow him to supplement the record.
The Court notes that the Defendants' first answer to F. Dombos' habeas petition included F. Dombos' state habeas petition. When the Defendants answered F. Dombos' Amended Petition, they incorporated their original answer. It appears that there is some evidence strewn throughout portions of F. Dombos' state habeas petition. If the evidence with which F. Dombos has requested the Court's permission to supplement the record is contained in his state habeas petition, F. Dombos should, instead of putting more documents in the record, provide the Court citations for the evidence that he wishes the Court to review.
F. Dombos has filed thirty enumerated objections to Judge Wormuth's PFRD. For the sake of efficiency, the Court will address his Objections in a slightly different order than F. Dombos presents.
I. THE COURT WILL OVERRULE IN PART AND SUSTAIN IN PART F. DOMBOS' OBJECTIONS PERTAINING TO JUDGE WORMUTH'S CHARACTERIZATION OF FACTS .
Objections 3 to 12 pertain to the way that Judge Wormuth characterized the facts of F. Dombos' case. See Objections at 8-39. Judge Wormuth took the facts from the record and noted that most were based on Ellen Dombos' testimony at trial. See PFRD at 2. A review of the record, specifically the transcript of E. Dombos' trial testimony, supports the characterization of the facts that Judge Wormuth set forth in his PFRD. See PFRD at 2-4. In his Objections, F. Dombos attempts to argue that E. Dombos was lying and that her testimony was not credible. See Objections at 8-39. Credibility of a witness is for the jury to decide, and this Court "may not weigh conflicting evidence nor consider the credibility of witnesses, [but must] `accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). Thus, because the jury's verdict reflects that it found E. Dombos' testimony credible, it was proper for Judge Wormuth to characterize the facts of this case around that testimony.
F. Dombos' Objections are lengthy. To the extent that he reargues the merits of his claims within objections 3-12, the Court will sustain Dombos' objections regarding the Court's failure to review all the evidence because it would not allow him to supplement the record.
For example, F. Dombos objects to Judge Wormuth's statement that, after F. Dombos' arrest, E. Dombos discovered a video tape — which F. Dombos refers to as the "found" video tape — and argues that Judge Wormuth should have stated that E. Dombos found the videotape the day after F. Dombos was indicted. See Objections at 24. F. Dombos contends that the timing goes to E. Dombos' motive, plan, and opportunity. See Objections at 24.
The Court further finds that the jury's resolution of the evidence surrounding E. Dombos' testimony was within the bounds of reason, and thus it would be improper for this Court to weigh any conflicting evidence that F. Dombos presents or to consider E. Dombos' credibility on habeas review. See Messer v. Roberts, 74 F.3d at 1013.
Although a review of the record supports Judge Wormuth's characterization of the facts, the Court will provide more detail to Judge Wormuth's statement when F. Dombos filed his state habeas petition. F. Dombos objects to Judge Wormuth's statement that, on February 6, 2009, F. Dombos filed a state habeas petition and that his petition was denied on March 9, 2009. See
Objections at 14. F. Dombos argues that he filed his first state habeas petition on November 18, 2008, but the district court struck his petition from the record. F. Dombos states that he appealed the striking of his petition, and the Supreme Court of New Mexico denied certiorari on January 15, 2009. F. Dombos states that he then filed a letter with the state district court, and the state district judge denied his petition on March 9, 2009. The Court will clarify Judge Wormuth's statement. F. Dombos filed a habeas corpus petition in state court on November 17, 2008, which was 1263 pages. See Order Denying Habeas Corpus Petition at 1, filed December 9, 2009 (Doc. 60-75, Ex. QQ). The district court ordered the petition striken as violating rule 5-802(B)(7), (8) NMRA. See Order Denying Habeas Corpus Petition at 1. After F. Dombos appealed the striking of his petition, and after the Supreme Court of New Mexico denied certiorari, F. Dombos filed a petition for habeas corpus on February 6, 2006. See Order Denying Habeas Corpus Petition at 1. The Twelfth Judicial District Court for the County of Otero, New Mexico issued an order denying F. Dombos' petition on March 9, 2009. See Order Denying Habeas Corpus Petition at 1. The Court will therefore sustain this objection.
F. Dombos also objects to Judge Wormuth's characterization of his remaining claims. See Objections at 15 (Doc. 107-1). He argues that Judge Wormuth did not mention F. Dombos' double-jeopardy issues in his PFRD. As the Court will later address, the Court finds that Judge Wormuth should have addressed F. Dombos' double-jeopardy claim. It will therefore sustain F. Dombos' objection.
Rather than returning this issue to Judge Wormuth for reconsideration, the Court addresses F. Dombos' double-jeopardy claim and concludes that it should dismiss his double-jeopardy claim on the merits.
Accordingly, the Court overrules in part and sustains in part objections 3-12.
II. THE COURT WILL SUSTAIN F. DOMBOS' OBJECTION REGARDING DOUBLE JEOPARDY, BUT FINDS THAT IT SHOULD DISMISS F. DOMBOS' DOUBLE JEOPARDY CLAIM ON ITS MERITS .
F. Dombos contends that Judge Wormuth did not review his double-jeopardy claim. See Objections at 40. In his Petition, F. Dombos mentions double jeopardy within one of his ineffective assistance of counsel ("IAC") claims. See Objections at 33. He argues that kidnapping and false imprisonment are continuing offenses, and that his convictions for two counts of firstdegree kidnapping and one count of false imprisonment should therefore not have been charged as three distinct acts. See Objections at 16, 33-34. It appears from F. Dombos' Petition that he was intending to reference double-jeopardy issues as proof of his IAC claims — claims that the Court has deemed unexhausted. See Memorandum Opinion and Order at 10, filed August 4, 2010 (Doc. 85).
F. Dombos has, however, exhausted his double-jeopardy claim. F. Dombos raised his double-jeopardy claim on direct appeal, the Court of Appeals of New Mexico addressed his doublejeopardy claim in its opinion regarding his direct appeal, and the Supreme Court of New Mexico denied certiorari. See McCary v. Zavaras, Nos. 10-1272, 10-1273, 2010 WL 4016774, *2 (10th Cir. Oct. 14, 2010) ("To satisfy the exhaustion requirement, a habeas petitioner `must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including discretionary review by the state's highest court." (quotingO'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); citing Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (stating that "[t]he exhaustion requirement is satisfied if the highest court exercises discretion not to review the case," and noting that this opportunity for the state court to resolve the federal constitutional issues can come either on direct review of the conviction or in a post-conviction attack); 2 R. Hertz J. Liebman, Federal Habeas Corpus Practice Procedure § 23.3b (5th ed. 2005) ("[T]he petitioner satisfies her exhaustion burden by raising a claim at all stages of the state's appellate review process (including discretionary state appeals)."). Because the Court finds that F. Dombos exhausted his double-jeopardy claim, the Court will sustain F. Dombos' objection that Judge Wormuth should have reviewed his doublejeopardy claim, even though it appears that F. Dombos intended to reference the double-jeopardy issue as proof of his IAC claim. Instead of asking Judge Wormuth to consider Dombos' doublejeopardy claim, however, the Court will address Dombos' double-jeopardy claim on the merits.
"The double jeopardy clause prohibits both successive prosecutions for the same offense and multiple punishments for a single offense." Thomas v. Kerby, 44 F.3d 884, 887 (10th Cir. 1995). The double-jeopardy protection is limited to ensuring that "the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (citations omitted). Whether multiple punishment for a single offense violates the double-jeopardy clause depends on "whether the legislature intended that an arguably single or continuous criminal episode could result in multiple `units of prosecution' based upon particular factors of time or other circumstances dividing the whole into discrete parts." Smith v. Kaiser, 951 F.2d 1260, *4 (10th Cir. Dec. 13, 1991) (unpublished) (citation omitted). See United States v. Hinkledey, 626 F.3d 1010, 1013 (8th Cir. 2010) (stating that a unit of prosecution is "the aspect of criminal activity that [the legislature] intended to punish"); United States v. Reagan, 596 F.3d 251, 253 (5th Cir. 2010) ("To determine `whether separate and distinct prohibited acts, made punishable by law, have been committed,' the court looks to the `allowable unit of prosecution, starting with the language of the statute."); United States v. Root, 585 F.3d 145, 150 (3d Cir. 2009) ("To determine whether a count is duplicitous, we must ascertain the allowable unit of prosecution to decide whether the indictment properly charges a violation of the pertinent statute. To do so, we inquire into Congressional intent by examining the language of the statute."). The court, however, must "accept the state court's construction of a state statute in determining the legislature's intent." Smith v. Kaiser, 951 F.2d 1260, at *4.
F. Dombos raised the double-jeopardy issue in his direct appeal, and so the Court of Appeals of New Mexico addressed this issue. The Court of Appeals analyzed the unit of prosecution issue in two steps: (i) reviewing the statute to see if the intended unit of prosecution was clearly defined in the statute; and (ii) determining whether F. Dombos' acts were "separated by sufficient indicia of distinctness to justify multiple punishments under the same statute." State v. Dombos, 143 N.M. 668, 673, 180 P.3d 675, 680 (Ct. App. 2008) (quotations and citations omitted). The Court of Appeals explained that the unit of prosecution for kidnapping was clear: "[A] kidnapping begins when the victim is initially confined and ends when the victim is released." Id. Then, looking to several factors, the Court of Appeal further held that there were individual instances of confinement that were separated by sufficient indicia of distinctness such that F. Dombos' separate convictions did not violate double jeopardy. See 143 N.M. at 673, 180 P.3d at 680. This holding was based on the fact that "[t]he record in [the] case reveal[ed] that there was substantial evidence that at least two circumstances of kidnapping, as well as that of false imprisonment, were separated by days; intervening events that included consensual sex, drinking, and daily activities; and terminations of the intent to restrain." Id. Thus, the Court of Appeals carefully considered and rejected F. Dombos' double-jeopardy claim.
Those factors included: "(1) temporal proximity of the acts, (2) location of the victim during each act, (3) existence of an intervening event, (4) sequencing of the acts, (5) the defendant's intent, and (6) the number of victims." State v. Dombos, 143 N.M. at 673, 180 P.3d at 680 (citing Herron v. State, 111 N.M. 357, 361, 805 P.2d 624, 628 (1991)).
The Court finds that the Court of Appeals of New Mexico's rejection of F. Dombos' double-jeopardy contention in his direct appeal was not contrary to, or an unreasonable application of, the clearly established federal law, and did not result in a decision based on the unreasonable determination of the facts, in the state-court proceeding. See 28 U.S.C. § 2254(d); House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (stating that a court shall not grant an application for a writ of habeas corpus with respect to a claim that was adjudicated on the merits in a state court proceeding unless the claim resulted in a decision contrary to or involved an unreasonable application of clearly established federal law, or resulted in a decision based on an unreasonable determination of the facts in light of the evidence). Accordingly, those findings are entitled to deference, and the Court will dismiss F. Dombos' double-jeopardy claim.
III. THE COURT WILL OVERRULE F. DOMBOS' OBJECTION TO THE ACTUAL-INNOCENCE CLAIM .
F. Dombos objects to Judge Wormuth's construction of his Petition as containing an actualinnocence claim. See Objections at 40. Instead, he argues that his claim was meant to be a miscarriage-of-justice claim specifically pertaining to his unexhausted IAC claims. See Objections at 40. The Court has already addressed F. Dombos' objection to Judge Wormuth's recommendation that F. Dombos' IAC claims are unexhausted. The Court will not repeat that analysis here. See Proposed Findings and Recommended Disposition at 4-12, filed June 23, 2010 (Doc. 81) (explaining why F. Dombos' IAC claims are unexhausted); Memorandum Opinion and Order at 2-8, filed August 4, 2010 (Doc. 85) (explaining further why F. Dombos' IAC claims are unexhausted). Additionally, in a previous PFRD, Judge Wormuth has already explained that the miscarriage-of-justice exception applies to claims that are deemed procedurally defaulted, which is not the case here. See Proposed Findings and Recommended Disposition at 3 n. 2, filed November 4, 2010 (Doc. 105). Thus, F. Dombos now has no basis for alleging the miscarriage-of-justice exception.
Moreover, it was a benefit to F. Dombos that Judge Wormuth liberally construed his application as bringing an actual-innocence claim, even though the burden for an actual-innocence claim is very high, because F. Dombos' Petition contained only general allegations that there was a miscarriage of justice in his case. The Court agrees with Judge Wormuth's analysis and conclusions on that matter, and will overrule F. Dombos' objection on that claim.
IV. THE COURT WILL SUSTAIN F. DOMBOS' OBJECTION TO JUDGE WORMUTH'S RECOMMENDATION ABOUT HIS PROSECUTORIAL-MISCONDUCT CLAIMS .
F. Dombos objects to Judge Wormuth's analysis pertaining to his prosecutorial-misconduct claims. See Objections at 41-104. He objects to Judge Wormuth's holdings regarding the prosecutor's remarks during closing arguments, Judge Wormuth's opinion that the evidence of guilt against him was significant, and that there were no Brady violations. See Objections at 41-104. In his objections relating to the prosecutor's remarks during closing arguments, F. Dombos states that he disagrees with Judge Wormuth's analysis and argues that the prosecutor's remarks, calling F. Dombos a "liar," "sexual deviant," and "monster," were not true. Objections at 41-45. F. Dombos argues that some of the evidence he wishes to add to the record — such as police scene photographs and a video tape — will show that the prosecutor was lying to the jury when he called F. Dombos a liar. See Objections at 41-42. While the evidence which F. Dombos wishes to add to the record may not affect Judge Wormuth's analysis on this issue, Judge Wormuth found that, because there was significant evidence of F. Dombos' guilt, and because the court instructed the jury to consider only witness testimony, attorneys' stipulations, and exhibits as evidence, the Court of Appeals of New Mexico's holding that the remarks did not deprive F. Dombos of a fair trial was neither contrary to clearly established Supreme Court precedent nor an unreasonable determination of the facts in light of the evidence. Nonetheless, because the Court does not believe it can carefully and thoughtfully make a fully informed decision on this issue without having the evidence as part of the record, the Court will sustain F. Dombos' objection so that Judge Wormuth may consider whether the supplemental evidence affects his determination.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution").
F. Dombos' next objections relate to his Brady and Giglio claims, and he further contends that evidence of guilt against him was not significant. See Objections at 45-104. Judge Wormuth discussed Brady v. Maryland and Giglio v. United States, and F. Dombos' claims that the state violated his constitutional rights by withholding items of allegedly exculpatory evidence, in his PFRD. Several of F. Dombos' objections to Judge Wormuth's analysis rely on supplemental evidence that Judge Wormuth has not allowed F. Dombos to add to the record. F. Dombos, in certain objections, argues that this evidence supports his arguments that the state committed Brady and Giglio violations. Because the Court, in an order filed January 28, 2011, see Doc. 124, allowed F. Dombos to supplement the record with evidence only, the Court will sustain F. Dombos' objections to Judge Wormuth's analysis so that Judge Wormuth may review the additional evidence that F. Dombos presents, and determine whether he wishes to change his recommendations regarding F. Dombos' Brady and Giglio claims.
Giglio v. United States, 405 U.S. 150 (1972) (extending the prosecution's disclosure obligation to evidence that is useful to the defense in impeaching government witnesses).
F. Dombos also references several of his IAC claims throughout this portion of his Objections. Those claims are unexhausted, and F. Dombos elected to delete them from his Petition. See Aug. 4, 2010 MOO at 10 (holding claims unexhausted); One Page Certification, filed August 16, 2010 (Doc. 87) (electing to delete unexhausted claims). Thus, the Court does not consider any of those claims here.
V. THE COURT OVERRULES F. DOMBOS' REMAINING OBJECTIONS .
The remainder of F. Dombos' objections relate to his arguments that his grand-jury claims have merit, contending that he successfully rebutted the presumption of correctness as 28 U.S.C. § 2254(e)(1) requires and by maintaining that he is entitled to an evidentiary hearing on his claims. See Objections at 5-6, 104-119. F. Dombos contends that the prosecutor denied his rights to a grand jury, violating due process, by changing the charge on the indictment after the grand jury issued it and not re-submitting the indictment to the grand jury. Judge Wormuth found that F. Dombos presented no evidence of the prosecutor changing the charge on the indictment after the grand jury issued it, and did not find evidence of the allegations in the grand-jury transcript, and therefore recommended dismissal of his grand-jury claims. See PFRD at 27-28. Judge Wormuth further stated that, "[g]iven the lack of clarity about Dombos' claim about the indictment, the Court will also construe Dombos' allegation as a complaint about the way the grand jury was instructed or some other error in the procedures before the grand jury." See PFRD at 27. Judge Wormuth stated that, under this construction, federal habeas relief would not be available, because the harm that errors in a grand jury's procedure causes are rendered harmless by a subsequent petit jury's guilty verdict, finding that the petitioner was guilty beyond a reasonable doubt. See PFRD at 27 n. 14 (citing United States v. Mechankik, 475 U.S. 66, 73 (1986). Judge Wormuth stated that, "[e]ven if there are exceptions to this rule, the circumstances justifying dismissal of the indictment after conviction must be so severe, the prosecutorial misconduct so blatant, as to call into doubt the fundamental fairness of the judicial process." PFRD at 28 n. 14 (quoting Goodrich v. Hall, 448 F.3d 45, 50 (1st Cir. 2006) (internal citations marks omitted). Judge Wormuth found that F. Dombos' allegations that the prosecutor altered the indictment after the grand jury issued it is not one of the very rare circumstances. See PFRD at 28 n. 14. In addition to Judge Wormuth's analysis, the Court would add that claims of error relating to state grand jury proceedings are not cognizable on federal habeas review, because "claims regarding state grand jury proceedings raise no federal constitutional issues." Pena v. Fischer, No. 00 Civ. 5984 HBMHD, 2003 WL 1990331, at *8 (S.D.N.Y. Apr. 30, 2003) (citing Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (stating that there is no federal right to a grand jury in a state criminal proceeding, because the Fifth Amendment right to grand jury was not incorporated by the Fourteenth Amendment)). F. Dombos objected to Judge Wormuth's dismissal of his grand-jury claims, arguing that, if Judge Wormuth had looked at the grand-jury transcript, he would have seen that F. Dombos set forth a claim, and that Judge Wormuth did not allow him to attach the grand-jury transcripts to his Amended Petition or to supplement the record with the transcripts. See Objections at 106-08. The Court overrules F. Dombos' objections, because F. Dombos' claims relates to error regarding grand-jury proceedings, and error relating to grand-jury proceedings are not cognizable on federal habeas review. The Fifth-Amendment right to a grand jury was not incorporated by the Fourteenth Amendment. The Court therefore finds that F. Dombos has not raised federal constitutional issues in his grand-jury claims. Although a defendant is "entitled to fair notice of the criminal charges against him under the Sixth Amendment's right to a fair trail and the Fourteenth Amendment's guarantee of due process, and claims that a charge instrument violated due process by not providing such fair notice are cognizable in habeas corpus actions," Parks v. Hargett, 188 F.3d 519, at *2 (10th Cir. 1999) (citations omitted), F. Dombos has not raised a claim that he did not receive fair notice; instead, his claim alleges violations of his rights because the prosecutor did not re-submit the changed indictment to the grand jury. Because F. Dombos raises only a claim regarding state grand-jury proceedings, which raise no federal constitutional issues, the Court overrules his objections.
Finally, the Court will deny without prejudice F. Dombos' request for an evidentiary hearing. The Court will determine whether it should grant F. Dombos' request after it receives a recommendation from Judge Wormuth following Judge Wormuth's review of the additional evidence that F. Dombos will submit to the Court. If, after Judge Wormuth reviews the additional evidence that the Court has given F. Dombos permission to submit, he finds that there are no disputed factual questions remaining that could entitle F. Dombos to habeas corpus relief and recommends that the Court deny with prejudice F. Dombos' request for failure to demonstrate the need for an evidentiary hearing under either 28 U.S.C. § 2254(e)(2) or any other governing principle of law, F. Dombos may, if he continues to believe an evidentiary hearing appropriate, approach the Court about his request. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." (citation omitted)).
IT IS ORDERED that the Petitioner's Objections, filed November 8, 2010 (Doc. 107) to the Magistrate Judge's Proposed Findings and Recommended Disposition, filed October 25, 2010 (Doc. 104) are overruled in part and sustained in part in accordance with this Memorandum Opinion and Order.