Armendariz v. Moya ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 4, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MICHAEL ARMENDARIZ,
Petitioner - Appellee,
v. No. 19-2206
(D.C. No. 1:18-CV-01144-WJ-CG)
MARIANNA VIGIL, Warden; STATE OF (D. N.M.)
NEW MEXICO; HECTOR H.
BALDERAS, Attorney General for the
State of New Mexico;
Respondents - Appellants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Petitioner-Appellee Michael Armendariz is an inmate serving a sentence of life
imprisonment plus thirteen years in state prison in New Mexico. After exhausting his
state-court remedies, he filed a petition under 28 U.S.C. § 2254, alleging entitlement
to federal habeas relief on twelve different grounds. On recommendation of the
magistrate judge, the district court denied relief on eleven of the asserted grounds but
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
granted relief on the twelfth. The state now appeals. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm.
BACKGROUND
Armendariz was found guilty of first-degree murder, attempted first-degree
murder, aggravated battery, evidence tampering, and possession of a firearm by a
felon. On direct appeal in state court, he argued his convictions for both aggravated
battery (in violation of N.M. Stat. Ann. § 30-3-5 (1978)) and attempted first degree
murder (in violation of N.M. Stat. Ann. §§ 30-28-1 (1978), 30-2-1 (1978)) violated
the constitutional prohibition against double jeopardy because they arose out of the
same conduct. The New Mexico Supreme Court rejected this argument in State v.
Armendariz, 141 P.3d 526, 531–35 (N.M. 2006). Applying the “strict elements” test
from Blockburger v. United States, 284 U.S. 299 (1932), the court concluded double
jeopardy was not implicated by the multiple convictions because each offense
included an element absent in the other. Armendariz, 141 P.3d at 533–35.
In 2013, however, the New Mexico Supreme Court overruled Armendariz,
concluding that it had become “so unworkable as to be intolerable” in light of
“modifications to double jeopardy jurisprudence” after Armendariz. State v. Swick,
279 P.3d 747, 754 (N.M. 2012). Those modifications brought New Mexico “more in
line with United States Supreme Court precedent” so that “in the abstract, the
application of Blockburger should not be so mechanical that it is enough for two
statutes to have different elements.” Id. The court concluded “the [New Mexico]
Legislature did not intend multiple punishments for attempted murder and aggravated
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battery arising from the same conduct because the latter is subsumed by the former,”
and so simultaneous convictions for both crimes arising from the same incident
violate the prohibition on double jeopardy. Id.
After unsuccessfully pursuing state habeas relief, Armendariz filed a § 2254
petition in federal court in December 2018. A magistrate judge recommended his
petition be granted as to the double jeopardy issue and that the aggravated battery
conviction be vacated. The state objected, and the district court overruled those
objections. This appeal follows.
DISCUSSION
“On appeal from the grant of habeas relief, we review the district court’s
factual findings for clear error and its legal conclusions de novo.” Richie v. Mullin,
417 F.3d 1117, 1120 (10th Cir. 2005). To obtain relief under 28 U.S.C. § 2254(d)(1),
the petitioner must demonstrate the state court adjudication of a claim “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
The Fifth Amendment, applicable to the states via the Fourteenth Amendment,
provides, in relevant part, that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Supreme Court
has interpreted this clause to “prevent the sentencing court from prescribing greater
punishment than the legislature intended,” Missouri v. Hunter, 459 U.S. 359, 366
(1983), and to protect “against multiple criminal punishments for the same offense,”
Monge v. California, 524 U.S. 721, 728 (1998). When determining the degree of
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punishment intended by a state legislature, this court is bound by the pronouncements
of that state’s highest court. See Wood v. Milyard, 721 F.3d 1190, 1197 (10th Cir.
2013) (“Under our precedent, we are bound by the state supreme court’s
determination of the state legislature’s intent with respect to multiple punishments.
We may not look behind it.” (brackets, citation, and internal quotation marks
omitted)).
Because, in Swick, the highest court of New Mexico determined the state
legislature “did not intend multiple punishments for attempted murder and aggravated
battery arising from the same conduct,” 279 P.3d at 754, Armendariz’s criminal
convictions for both were “contrary to . . . clearly established Federal law,” i.e., the
Double Jeopardy Clause, Blockburger, Hunter, and Monge.1 28 U.S.C. § 2254. The
district court therefore ordered that the conviction for the lesser offense be vacated.
See Wood, 721 F.3d at 1197 (“Because vacating either . . . conviction will suffice to
remedy [petitioner’s] double jeopardy complaint, the most equitable result in this
case would be one that permits the elimination of his lesser . . . conviction—or at
least permits the [state] courts that tried him to choose which conviction will go.”).
1
It is inconsequential that, as a practical matter, vacating Armendariz’s lesser
conviction will not reduce his term of imprisonment because he was still sentenced to
life. See Wood, 721 F.3d at 1195–96. (“Double jeopardy doctrine prohibits
cumulative punishments the legislature hasn’t authorized. And it’s long since settled
that a conviction, even a conviction without a corresponding sentence, amounts to a
punishment for purposes of federal double jeopardy analysis.”)
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The state challenges this conclusion on two bases. First, it contends the
district court misapplied § 2254 by considering Swick, rather than confining its
analysis to review of the New Mexico Supreme Court decision in Armendariz.
Second, it contends the district court improperly decided that Swick was retroactive,
instead of leaving that matter to the New Mexico courts. We are not persuaded.2
Regarding the first argument, we agree with the district court that the relevant
corpus of “clearly established federal law” was not changed between Armendariz in
2006 and Swick in 2012. Rather, “both decisions applied Blockburger.” Aplt. App.
at 308. The Swick court, however, revisited its prior conclusions regarding the intent
of the New Mexico legislature. The district court was not precluded by § 2254(d)(1)
from considering the pronouncements of the state’s highest court on this issue. To
the contrary, it was bound by them. See Wood, 721 F.3d at 1195 (“[A] conclusion
about state legislative policy, coming . . . from the state high court, binds us.); Birr v.
Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990) (per curiam) (“In assessing whether
a state legislature intended to prescribe cumulative punishments for a single criminal
incident, we are bound by a state court’s determination of the legislature’s intent.”).
2
We do not consider whether Armendariz exhausted his available state court
remedies as a pre-requisite to relief under § 2254 on his double jeopardy claim
because the state expressly waived exhaustion as a defense in its response to his
petition. Aplt. App. at 78 (listing double jeopardy claim as one which “Mr.
Armendariz appears to have exhausted available state-court remedies . . . by
presenting them to the state’s highest court in the course of direct appeal and post-
conviction proceedings” (footnote omitted)). See Gonzales v. McKune, 279 F.3d 922,
926 (10th Cir. 2002) (recognizing that state can waive exhaustion requirement in
answer to habeas petition).
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Regarding the second argument, the district court concluded the state waived
the issue of Swick’s retroactivity by not raising it until its response and objections to
the magistrate’s recommendations. See United States v. Garfinkle, 261 F.3d 1030,
1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections
to the magistrate judge’s report are deemed waived.”). We agree. The state contends
it had no reason to raise the issue of retroactivity until after the issuance of the
magistrate’s recommendations, but this assertion is belied by the record. The state
did discuss Armendariz and Swick in its response to the petition, and the magistrate’s
recommendations include no discussion of retroactivity whatsoever. Had the state
wished to timely raise the issue, it could have. No sound reason exists to depart from
the usual waiver rules in this context, and we decline to do so.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Entered for the Court
Joel M. Carson III
Circuit Judge
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