Aguirre v. Ulibarri

Full title: CORNELIUS RENTERIA AGUIRRE, Petitioner, v. ROBERT ULIBARRI, Warden, and…

Court: United States District Court, D. New Mexico

Date published: Jun 19, 2007

CIV 06-1062 WJ/KBM (D.N.M. Jun. 19, 2007)

Opinion

CIV 06-1062 WJ/KBM.

June 19, 2007

ORDER ADOPTING MAGISTRATE JUDGE S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

WILLIAM JOHNSON, District Judge

The Magistrate Judge filed her Proposed Findings and Recommended Disposition on Monday, May 7, 2007. Doc. 11. The matter is before me on the objections Petitioner mailed on June 1, 2007, which I will consider to be timely. See Doc. 12 at 7.² I have reviewed the objections de novo.

2 Objections to proposed findings are due within ten days of receipt, and that rule was prominently displayed on the last page of the proposed findings. See 28 U.S.C. § 363(b)(1); Doc. 11 at 22. For prisoners, objections must be mailed to the Court following their relevant prison mailbox rules. See Price v. Philpot, 420 F.3d 1158, 1164-65 n. 4 (10^th Cir. 2005) (citing Dunn v. White, 880 F.2d 1188, 1190 (10^th Cir. 1989) (per curiam), cert. denied, 493 U.S. 1059 (1990)).

Petitioner is mistaken in his assertion that if a state court does not make findings, a federal habeas evidentiary hearing is necessarily required. See, e.g., Anderson v. Attorney General of Kansas, 425 F.3d 853, 858-59 (10^th Cir. 2005) (even if evidentiary hearing restrictions in 28 U.S.C. § 2254(e)(2) are inapplicable, "an evidentiary hearing is unnecessary if the claim can be resolved on the record"); Doc. 12 at 1. He also asserts that "Strickland held that the failure to investigate relevant facts is always ineffective assistance of counsel," Doc. 12 at2 (emphasis added), when Strickland specifically says the opposite. "[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether." Strickland v. Washington, 466 U.S. 668, 691 (1984).

Aguirre again argues that his assaultive behavior (kidnapping, child abuse, and battery against a household member) was provoked and justified because his girlfriend allegedly was pregnant by another man. He simply fails to appreciate that this is not a defense to his crimes, as the Magistrate Judge noted. See Doc. 18 at 14-15. He also believes that had a New Mexico jury known this, it would have understood his reaction and his attorney should have pursued the justification defense because "[j]ury nullification is a defense strategy that goes back to our colonial times." Doc. 12 at 3. However, failure to raise a "nullification" defense is not ineffective assistance of counsel. Strickland specifically notes that for the prejudice prong of the inquiry,

[a]n assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decision maker, even if a lawless decision cannot be reviewed.

Strickland, 466 U.S. at 695. A recent district court decision likewise observes:

"[T]here is no constitutional right to jury nullification." United States v. Powell, 955 F.2d 1206, 1213 (9^th Cir. 1992); see also Crease v. McKune, 189 F.3d 1188, 1193 (10^th Cir. 1999) (noting no right to jury nullification in federal habeas corpus review of state conviction); United States v. Thomas, 116 F.3d 606, 615 (2^nd Cir. 1997) ("[T]he power of juries to `nullify' or exercise a power of lenity is just that — a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.").

Osumi v. Giurbino, 445 F. Supp. 2d 1152, 1165 (C.D. Cal. 2006). Furthermore, New Mexico does not recognize a state-created right to jury nullification. E.g., State v. Clark, 128 N.M. 119, 132, 990 P.2d 793, 806 (N.M. 1999) ("The trial court expressed its concern that testimony of religious leaders and lawyers regarding the propriety of the death penalty was not relevant mitigating evidence, and it may urge jury nullification of state law. We agree.").

Petitioner's other objections do not warrant further discussion, and I find them also without merit.

Wherefore,

IT IS HEREBY ORDERED THAT:

1. The Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 11) is ADOPTED;

2. The § 2254 petition is dismissed on the merits with prejudice; and

3. A final order enter concurrently herewith.