Michael D. Colby v. John Thomas, Successor to Robert Tansy, Warden, P.N.M. Attorney General of the State of New Mexico

Citations: 107 F.3d 20; 1997 U.S. App. LEXIS 6879; 1997 WL 57078Docket: 95-2128

Court: Court of Appeals for the Tenth Circuit; February 10, 1997; Federal Appellate Court

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Unpublished opinions may be cited if they have persuasive value on a material issue and if copies are attached to the citing document or provided to the Court and parties. Michael D. Colby, the petitioner-appellant, is appealing the denial of his habeas corpus petition against John Thomas, the warden, and the Attorney General of New Mexico. Colby and a co-defendant were convicted of first-degree murder and sentenced to life imprisonment, a conviction later affirmed by the New Mexico Supreme Court. Colby sought a new trial based on newly discovered evidence, which was denied by the state trial court and affirmed by the Supreme Court.

Subsequently, Colby filed for post-conviction relief, claiming violations of his due process rights, including the inability to present all evidence to a jury, use of perjured testimony, and withholding of exculpatory evidence. He also challenged a revised interpretation of parole eligibility as a due process, equal protection, and ex post facto violation. Both the state district court and the New Mexico Supreme Court denied relief. 

Colby then filed for federal habeas corpus relief, reiterating his claims. The district court adopted the magistrate judge's findings and denied relief, concluding that due process rights were not violated and that the prosecution did not make improper deals with witnesses. The court also found that the change in parole regulations did not unconstitutionally affect Colby's good time credits. Colby appealed, arguing that the withholding of material exculpatory evidence violated Brady v. Maryland. He contended that the district court should have assessed the cumulative effect of the withheld evidence rather than evaluating each item separately.

Under the Brady framework, mixed questions of law and fact are reviewed de novo. A violation occurs when the prosecution suppresses exculpatory evidence requested by a defendant, which is material to guilt, regardless of the prosecution's intent. To prove a Brady violation, the petitioner must demonstrate that the prosecution suppressed favorable material evidence. Materiality is assessed based on whether there is a reasonable probability that disclosure would have changed the trial outcome, considering the cumulative effect of the suppressed evidence and its relevance to both the defense and prosecution.

In this case, it was undisputed that Officer Gallegos' statement, indicating the petitioner left the crime scene and had no blood on his clothes, was not disclosed to the petitioner. The New Mexico Supreme Court found no evidence that the prosecution was aware of Gallegos or his statement prior to a new trial motion hearing, and the petitioner failed to show due diligence in uncovering this information. The court noted that Brady's obligations depend on the materiality of the evidence, which was not established here, as the statement was deemed cumulative to testimony already presented by five witnesses and the petitioner.

The petitioner also raised concerns about undisclosed deals made to trial witnesses and alleged perjury. However, the New Mexico Supreme Court concluded that evidence of executive clemency granted post-trial did not demonstrate that the witnesses were promised leniency in exchange for testimony. The testimony and evidence showed that any promises made were related to witness safety, with the petitioner’s unsupported allegations not sufficient to prove undisclosed promises. The court declined to infer such promises based solely on the clemency granted.

The petitioner asserts that the State failed to preserve exculpatory evidence, specifically splinters from his hands, which were lost or destroyed. This issue was not included in his federal habeas corpus petition but was first raised in his district court briefs, which the court chose not to address. Generally, issues not presented in the habeas petition are ineligible for appeal. Even if considered, the claim lacks merit, as the petitioner has not demonstrated bad faith by the State regarding the preservation of this evidence.

Additionally, the petitioner argues that the refusal to grant a new trial based on newly discovered evidence violated his due process rights, citing the recantation of testimony from prosecution witness Ronnie Fritts. The trial court found Fritts was not unavailable for the hearing and offered to postpone the ruling to allow the petitioner to secure the witness's testimony, which he did not pursue. Furthermore, the court rejected a hearsay statement regarding Fritts' recantation.

The petitioner also claims Michael Price's confession, stating he committed the murder with Fritts and that the petitioner was uninvolved, constitutes new evidence. However, the district court ruled this evidence could have been discovered before the trial, and the New Mexico Supreme Court deemed it cumulative to the defense presented. Price's credibility is also questioned due to inconsistencies in his confession and his invocation of the Fifth Amendment regarding his relationship with the petitioner.

Lastly, the petitioner references Officer Gallegos' statement as another basis for a new trial, but this was also deemed cumulative. The petitioner failed to prove that his lack of knowledge about this evidence was due to diligence, that it was not merely cumulative, or that it would likely result in an acquittal in a retrial. Consequently, it is concluded that the petitioner has not established a violation of his due process rights in the denial of a new trial.

Petitioner contends that the district court incorrectly determined he was justifiably deprived of good time credits without adequately considering his arguments that were not barred by *Stephens v. Thomas*. He asserts violations of his due process and equal protection rights, as well as the prohibition against ex post facto laws, due to the New Mexico parole board's altered interpretation of 'serve' in part of the statute. The district court's failure to address these arguments was deemed non-erroneous, as they had been previously discussed and rejected in *Stephens*. The appellate court affirmed the district court's decision, noting that this order is not binding precedent, except under specific legal doctrines. The court expressed a general disfavor for citing orders and judgments but allowed limited citation under local rules. It unanimously concluded that oral argument would not aid in resolving the appeal and submitted the case without it. Furthermore, since the petitioner filed his notice of appeal before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the Act does not apply to this case. Additionally, Price was initially indicted as a co-defendant, severed during trial, and later pled guilty to voluntary manslaughter.