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Talton's body; however, no underwear could be located. Talton had been shot in the head and in the right side of her pelvis. Newell; however, he also said he was familiar with the entire file in this case, which presumably would have included Sergeant Gonzales' report regarding Ms.

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Nelson Welch, an expert for the prosecution, testified although Ms. Newell, even though the court had ordered the prosecution to disclose, inter alia, police reports in this case.

Based on his finding of shotgun pellets and wadding in the vicinity of both of Ms. Gauthier concluded she had been shot with a shotgun, although he could not determine whether the same shotgun inflicted both of her wounds. Pitchford's statement, which he was “sure” he had read in preparation for trial. Harris testified he was never informed “Randy” Newell was actually Samuel J.

On May 24, 1993, the magistrate judge issued a thirteen-page report and recommendation, making findings similar to those made by the state trial court after its Rule 57 post-conviction hearing.

Mc Cue, Federal Public Defender, Albuquerque, NM, for petitioner-appellant. On October 28, 1985, the New Mexico Supreme Court agreed with the State's position and held the state trial court was “without jurisdiction to grant an evidentiary hearing in the instant case.” State ex rel. The court then established a briefing schedule for the merits of the claims raised in the petition.

When it was subsequently learned the women were from Albuquerque, in Bernalillo County, the Albuquerque Police Department also became involved. Ferrara's pretrial notes regarding “Randy” Newell specifically noted he had given a tape recorded statement to Sheriff Chavez, as well as statements to Detective Borunda, and to someone in the Medical Examiner's Office. Newell's statement to Sergeant Gonzales was referenced in a supplemental report prepared by Sergeant Gonzales on September 15, 1977. The letter further indicated Sheriff Chavez had taken a tape recorded statement from “Randy” Newell. Smith has in fact made the requisite showing of an entitlement to a certificate of probable cause to appeal.

Because the women's bodies were found within the geographical limits of Torrance County, the initial investigation was undertaken by the Torrance County Sheriff's Department and the New Mexico State Police. The prosecution had knowledge of these statements, as Ms. Lucero of the district attorney's open file policy. At around a.m., he drove his van to the residence of two of his friends, Harvey Bylsma and Ginger Donham. As for the timing of when this information was allegedly conveyed to the prosecution, Detective Borunda stated, “I don't know how early in the investigation it became known-that Randy Newell was actually Samuel Newell, but it was during one of the trials that it was known. This requirement furthers the salutary purpose of weeding out frivolous appeals, see Barefoot, 463 U. Smith now raises in federal court-Brady violations, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel -were unavailable to him. Smith's arguments on appeal, beginning with his claim that the prosecution failed to disclose various pieces of material exculpatory evidence. Bylsma's help in retrieving his pickup, which had been impounded. Pitchford indicated that “Randall Newell was also known as Samuel J. Smith also introduced the testimony of Detective Archie Borunda of the Albuquerque Police Department who stated he told the prosecution that “Randy” Newell was actually Samuel J. Detective Borunda testified once he learned this information, he obtained a rap sheet on Samuel J. The rap sheet indicated the prior convictions discussed above, and Detective Borunda stated he gave a copy of that rap sheet to the prosecution. At the time of his direct appeal, the three claims Mr. The Brady Doctrine“[S]uppression 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.” Brady, 373 U. He did indicate, however, that the degree of decomposition of the bodies was consistent with the women having been dead for two to three days. The women went to a party that night at the home of one of Mr. Smith at the party and they had sexual intercourse numerous times that evening. Yet another important issue at this hearing involved four statements “Randy” Newell made to Sheriff Chavez, Sergeant Gonzales, Detective Borunda and an employee of the Medical Examiner's Office. Talton had in fact been shot by a 12-gauge shotgun, he could not determine whether State's Exhibit 44, a 12-gauge shotgun belonging to Mr. David Ramirez, a criminalistics expert, testified there were no workable prints on Exhibit 44, nor was there any indication the weapon had recently been cleaned. Gauthier was unable to determine the precise time of death due to the decomposition of the bodies. Hume indicated the two women stayed for an hour or so before they left to go out drinking and looking for drugs. Talton, who was living with her common law husband “Randy” Newell, met Mr. Smith's roommate, and she ended up spending the night with him at Messrs. Moreover, because Harris never learned of Newell's true identity, he stated he did not know about his fugitive status or his prior convictions either. Ed.2d 744 (1968) (per curiam); see also Barefoot v. Smith's primary basis for requesting relief from his two 1978 first degree murder convictions in New Mexico state court, and his corresponding consecutive life sentences, is the prosecution improperly withheld material exculpatory evidence in violation of Brady v. Mc Donnell for about a year and a half at the time of her disappearance. He also did not recall ever seeing a transcription of the tape recorded statement given to Sheriff Chavez. As to the former, if Harris had been apprised of the existence of these statements, specifically the statement by Mr. Hector then sought a state petition for a writ of habeas corpus by filing a civil action on May 29, 1984, against the warden, the person with “custody” over Mr. The State responded to the court's order to show cause by filing a motion to preclude an evidentiary hearing and to dismiss the petition.

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