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Ysidro N. Florez, Jr., pro se.

Patricia A. Madrid, Attorney General, State of New Mexico, and Ann M. Harvey, Assistant Attorney General, State of New Mexico, Sante Fe, New Mexico, for Respondents-Appellees.

I. Background

Florez entered the trailer home of a seventy-one year old woman sometime after 4 a.m. on November 2, 1997 and there engaged in sexual activity with her.⁽²⁾ The woman alleged that he broke into her trailer and that she feared for her life and acceded to his demands to avoid provoking him to greater violence. He maintained that he entered her trailer because the front door was open, and asserted that once he was inside she wordlessly removed her clothes and moved expectantly into her bed, and the resulting sexual activity was consensual. The undisputed evidence showed that Florez had been drinking that night, and that he was unable to achieve an erection during the events at issue.

The jury convicted Florez of one count of criminal sexual penetration ("CSP") in the second degree and one count of aggravated burglary. During its deliberations, the jury had asked the judge whether it could convict on second-degree CSP without convicting on aggravated burglary, and the judge replied that it could not.⁽³⁾ On direct appeal and again in his motion for state post-conviction relief, Florez argued four grounds for reversal of his conviction: (1) ineffective assistance of counsel in failing to request instructions on intoxication and the lesser-included offenses of third-degree CSP and criminal trespass, and in failing to object to a particular juror; (2) due process violations flowing from erroneous jury instructions; (3) double jeopardy violation flowing from conviction for both aggravated burglary and CSP; and (4) sufficiency of the evidence as to aggravated burglary. His conviction was upheld on direct appeal, State v. Florez, No. 20,007 (N.M. App. Apr. 14, 2000), and his pro se motion for state post-conviction relief was denied.

Florez filed pro se for federal habeas relief, raising the same four issues he had raised in state court. The magistrate judge issued a detailed written report recommending that the petition be denied. Florez v. Williams, No. CIV 00-1753JP/KBM (Mag. D.N.M. Mar. 30, 2001). The district court adopted the magistrate's report in its entirety, Florez v. Williams, No. CIV 00-1753JP/KBM (D.N.M. May 22, 2001) (order adopting magistrate judge's proposed findings and recommended disposition), and denied a certificate of appealability, Florez v. Williams, No. CIV 00-1753JP/KBM (D.N.M. June 20, 2001) (order denying certificate of appealability).⁽⁴⁾ By order dated October 22, 2001, this court affirmed the denial of a certificate of appealability ("COA") as to issues two through four. Florez v. Williams, No. 01-2172, slip op. at 3 (10th Cir. Oct. 22, 2001). We also affirmed the denial of COA for the ineffective assistance claim insofar as it challenged the failure to object to the juror. Id.

The only remaining issue, then, is whether trial counsel's failure to request the three jury instructions was ineffective assistance. We instructed the State to file an answer addressing this issue. Id. We asked (1) whether the ineffective assistance claim arising from failure to request a third-degree CSP instruction was procedurally barred, and (2) whether the ineffective assistance claims should succeed on the merits. Id.

II. Waiver of third-degree CSP claim

The district court stated, and the State now argues, that Florez failed to argue in his federal habeas petition that his counsel was ineffective for failure to request a third-degree CSP instruction ("third-degree CSP claim").⁽⁵⁾

Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 10 n.5 (Mag. D.N.M. Mar. 30, 2001) ("Petitioner does not argue here that a lesser-included instruction on criminal sexual penetration in the third degree should have been given."). We disagree. Because his habeas petition was prepared pro se, we construe its legal arguments liberally. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). In his habeas petition, Florez asserted that "[h]ad the jury received an intoxication instruction and instructions on the lesser included offenses . . . . Mr. Florez could only have been convicted of criminal trespass (a misdemeanor) and CSP (a third-degree felony)." Further, he argued that his counsel was ineffective because he "did not tender any jury instructions of the Defendant's theory of the case and did not request jury instructions on any lesser included offenses." (Emphasis added.) The use of the plural necessarily refers to the failure to tender a third-degree CSP instruction in addition to a criminal trespass instruction. These arguments, liberally construed, plainly are sufficient to preserve the third-degree CSP issue for our review.

III. Merits of ineffective assistance claims

Because we conclude that Florez's ineffective assistance claims are preserved as to each of the three challenged jury instructions that counsel failed to request, we turn to the merits of these claims. We apply the familiar two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), assessing whether counsel's performance was deficient and whether Florez suffered prejudice as a result.

A. Intoxication instruction

1. Deficient performance

Florez's counsel did not request, and the trial court did not issue, an intoxication instruction.⁽⁶⁾ Intoxication is a complete defense to any specific intent crime. State v. Brown, 931 P.2d 69, 74 (N.M. 1996). Aggravated burglary is a specific intent crime. N.M. Stat. § 30-16-4. In this case, aggravated burglary was the predicate felony upon which Florez's third-degree CSP conviction was based. Thus, if the jury had found intoxication, Florez could not have been convicted of second-degree CSP and aggravated burglary, but he could have been convicted of third-degree CSP and criminal trespass.

The district court concluded that counsel's failure to request an intoxication instruction was not deficient performance because such a request would have been denied. Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 9 (Mag. D.N.M. Mar. 30, 2001). Although the district court stated that "[t]he New Mexico Court of Appeals concluded that the evidence produced in Florez' trial would not have warranted giving the intoxication defense instruction," id., in fact the state court in this case expressly declined to reach such a conclusion. See State v. Florez, No. 20,007, slip op. at 3 (N.M. App. Apr. 14, 2000) ("[W]e do not mean to suggest that Defendant would not have been entitled to lesser included offense instructions had his counsel requested them. We do not decide that issue."). We conclude that the district court based its conclusion on an erroneous understanding of New Mexico law. The district court relied in part on Valdez v. Ward, 219 F.3d 1222, 1244 (10th Cir. 2000), cert. denied, 532 U.S. 979 (2001), for the proposition that failure to request an intoxication instruction was reasonable where "there was no evidence that the intoxication rendered Petitioner incapable of acting purposefully." Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 9 (Mag. D.N.M. Mar. 30, 2001). Valdez, however, was applying Oklahoma law, not New Mexico law, and the two states have distinctly different standards for when the intoxication defense must be given. See Valdez, 219 F.3d at 1245 (rejecting petitioner's argument that counsel was ineffective for failing to request intoxication instruction, because under Oklahoma law such instruction is unavailable where the defendant is able to give a detailed description of the crime); accord Taylor v. State, 998 P.2d 1225, 1230 (Okla. Crim. App. 2000) (trial court erred in giving voluntary intoxication instruction because defendant "was able to give a detailed account of the events of the night in question"). Cf. Bland v. State, 4 P.3d 702, 718 (Okla. Crim. App. 2000) (no error in refusal to give voluntary intoxication instruction because defendant gave a detailed account of the circumstances surrounding the crime).

New Mexico law provides a significantly more lenient standard, as State v. Privett, 717 P.2d 55 (N.M. 1986), the other case cited by the district court, makes clear:

[T]o authorize an instruction on intoxication the record must contain some evidence showing or tending to show that defendant consumed an intoxicant and the intoxicant affected his mental state at or near the time of the [specific intent crime]. In deciding whether the instruction is proper, the trial court must not weigh the evidence, but must simply determine whether such evidence exists. . . . The instruction does not require . . . expert evidence and, in fact, imposes on the jury the determination of the effect of intoxication.

. . . If under any reasonable hypothesis the instruction could have been of any benefit to the defendant when considered by a jury of lay persons, then defendant was harmed and prejudiced by the refusal to give it.

Id. at 58 (citations and internal quotation marks omitted); see also State v. Begay, 964 P.2d 102, 111 (N.M. 1998) (intoxication instruction was warranted because "record contains evidence which reasonably tends to show that defendant's claimed intoxication rendered him incapable of acting in a purposeful way" where witnesses testified that earlier in the evening defendant drank heavily and possibly used methamphetamine and an expert testified that this combination of alcohol and drugs could impair one's ability to form an intent to kill); State v. Romero, 958 P.2d 119, 126-27 (N.M. App. 1998) ("When there is evidence of intoxication at or near the time of the crime, a defendant need not present specific evidence as to what degree the intoxicant affected him."). Cf. State v. Williams, 417 P.2d 62, 67 (N.M. 1966) (intoxication instruction not warranted where only evidence of intoxication was defendant's testimony that he had a double shot of scotch an hour before the crime, and officer who spoke to defendant shortly before the crime could smell a slight amount of alcohol on his breath but that defendant "very definitely" did not appear intoxicated, because "[t]here is no evidence which in any way suggests he was under the influence of intoxicants at the time of the shooting"). No New Mexico case adopts the Oklahoma rule that the ability to give a detailed account of the crime serves as an absolute bar to invocation of the intoxication defense.

Accordingly, it is clear that the district court erred in relying upon Oklahoma's intoxication instruction standard in ruling that the defendant here would not have been entitled to an intoxication instruction under New Mexico's far more lenient standard. Indeed, applying New Mexico law, the evidence in this case plainly would have been sufficient to require such an instruction, had Florez's counsel not failed to request it. The evidence indicated that Florez had consumed, in the State's own words, "a lot of alcohol" (Aple B. 18) at the party from which he was returning when he walked past the victim's trailer, and that as a result Florez was so intoxicated that he was unable to achieve an erection during the incident. Further, the evidence suggests that Florez's behavior was bizarre and out of character: a man who "had been married for twenty years and had never slept with anyone but his wife" (id. at 11) raving to a seventy-one year-old woman that "If I could get this thing to work, you'd holler for more, more, more." (Id. at 5.) See Privett, 717 P.2d at 81 (defendant's bizarre behavior at time of crime ­ slapping his elderly wife's bare bottom, failing to help her up into bed ­ supported conclusion that defendant's mental state was affected by intoxication). Accordingly, we hold that the evidence here was sufficient under New Mexico law to warrant an intoxication instruction.

The question remains whether the state court's disposition of this issue was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). As noted above, the New Mexico Court of Appeals expressly declined to decide whether Florez would have been entitled to an intoxication instruction. State v. Florez, No. 20,007, slip op. at 3 (N.M. App. Apr. 14, 2000). Rather, the court concluded that "Defendant's defense was consent, and his strategy appeared to be to go for an all-or-nothing verdict. . . . We simply decide that it could have been a tactical decision to go with the simple, straightforward defense [of consent] . . . rather than risk potentially confusing the jurors with legalistic arguments." (Id. at 3-4.)

We conclude that the state court decision on this point is unreasonable. A request for an intoxication defense would not have been inconsistent with the defense's "strategy" of arguing consent. Cf. Jackson v Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) ("Pursuing a diminished capacity defense would have been inconsistent with Mr. Jackson's complete denial of involvement in the robbery."). There is no apparent reason why Florez's intoxication would render the consent theory any more implausible than it already was.⁽⁷⁾

Alternatively, we conclude that the court's decision was "contrary to . . . clearly established federal law." A decision is contrary to clearly established federal law when it states the wrong standard. Terry Williams v. Taylor, 529 U.S. 362, 397, 405-07 (2000). In this context, Supreme Court precedent holds that counsel's decisions do not constitute deficient performance when they are made pursuant to "sound trial strategy." Strickland, 466 U.S. at 689) (emphasis added, internal quotation omitted); see also id. at 690 ("reasonable professional judgment"); Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) ("sound strategy"). Here, the court of appeals simply dispensed with the reasonableness requirement. State v. Florez, No. 20,007, slip op. at 3 (N.M. App. Apr. 14, 2000) ("We simply decide that it could have been a tactical decision . . . ."). In the context of this case, the omission of the reasonableness requirement from the analysis is of obvious importance, because, as noted above, any decision to pursue an incredible defense strategy rather than a plausible, and consistent, intoxication strategy was completely unreasonable.

For the foregoing reasons, we hold that the state court's decision that the failure to request an intoxication instruction was not deficient performance under Strickland was contrary to, or an unreasonable application of, federal law.

2. Prejudice

A petitioner who has demonstrated deficient performance by counsel is entitled to habeas relief only if he was prejudiced by his counsel's deficient performance. Strickland, 466 U.S. at 694. To demonstrate prejudice, a petitioner must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome would have been different. Id.

The state court rejected Florez's intoxication instruction claim on the first Strickland prong without addressing prejudice. The federal district court reasoned, without elaboration, that Florez "cannot establish prejudice for counsel's strategy of not pursuing an intoxication defense or lesser-included instruction" because "obviously the jury disbelieved Florez' testimony that . . . his encounter with her was consensual." Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 13 (Mag. D.N.M. Mar. 30, 2001). This reasoning is incorrect. It is precisely because the jury disbelieved the consent defense that Florez was prejudiced by the failure to offer alternatives.

Here, there was persuasive evidence of Florez's intoxication ­ the unchallenged testimony regarding his drinking at a party earlier that night and his inability to achieve an erection. As noted above, in New Mexico legal intoxication requires only some evidence tending to show that the intoxicant affected the defendant's mental state near the time of the crime. Given this liberal standard, there is a reasonable probability that the trial judge would have given, and the jury would have acted upon, an intoxication instruction.⁽⁸⁾ This conclusion is bolstered by the jury's note asking whether it could convict of second-degree CSP without convicting of aggravated burglary, which suggests that it was looking for a less harsh verdict than the one it ultimately returned.

The State argues that Florez was not prejudiced because the jury could not have found intoxication without disbelieving his detailed account of the events. We disagree, for two reasons. First, the State misapprehends New Mexico law, because under that state's liberal intoxication standard the jury could have believed that Florez was legally intoxicated despite his ability to remember the events later. Second, even if the two positions were mutually exclusive, an intoxication defense was so much more viable than the consent defense that it is impossible to conclude, as the State argues, that the intoxication "instruction would have had a negative effect on petitioner's position, not a positive one."

B. Lesser included offense instructions: criminal trespass and third-degree CSP

1. Deficient performance

The state court concluded that counsel's failure to request instructions on criminal trespass and third-degree CSP was not deficient performance for the same reason that the failure to request an intoxication instruction was not deficient performance: focusing on a simple consent defense could have been a tactical decision. State v. Florez, No. 20,007, slip op. at 3 (N.M. App. Apr. 14, 2000). The State relies upon the same reasoning on appeal. For the reasons discussed above, the state court's holding on this issue is both contrary to, and an unreasonable application of, Supreme Court precedent.

The district court agreed with the state court that failure to request instructions on criminal trespass and third-degree CSP was not deficient performance, relying on two alternative rationales. First, it believed that lesser-included offense instructions would not have been to Florez's benefit because his "own version of events established a criminal trespass ­ he testified that he entered Ms. Brown's home without her permission. In light of his client's testimony, it was entirely reasonable for counsel not to expose his client to a potential sentence of incarceration." Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 11 & n.5 (Mag. D.N.M. Mar. 30, 2001). This reasoning is unconvincing. Like much of the reasoning of the district court and the state court discussed above, it erroneously relies on the reasonableness of opting for a consent defense. Further, it is unpersuasive even on its own terms. It assumes not merely that the jury would believe that the victim was a consensual participant, but that a jury that believed the victim had consented would convict someone of criminal trespass where that person entered without permission and was then invited to stay and engage in sexual relations by the owner. On the facts of this case, only counsel that was professionally incompetent would forsake a viable defense for an absurd one based on such conjecture-upon-conjecture reasoning.

The second reason given by the district court for concluding that the failure to request the lesser-included offenses was not ineffective assistance is more substantial, but again we are unpersuaded. The district court noted that, in Lujan v. Tansy, 2 F.3d 1031 (10th Cir. 1993), we held that "a petitioner in a non-capital case is not entitled to habeas relief for the failure to give a lesser-included offense instruction even if in our view there was sufficient evidence to warrant the giving of an instruction on a lesser included offense." Id. at 1036 (internal quotation omitted). However, the court cited no case (and we have found none) extending this reasoning to conclude that the failure to request an instruction is not deficient performance under the Sixth Amendment. To the contrary, we expressly declined to make such an extension in an analogous context. See Hooks v. Ward, 184 F.3d 1206, 1234, 1235 n.29 (10th Cir. 1999) (holding that "a state prisoner seeking federal habeas relief may not prevail on a Beck [v. Alabama, 447 U.S. 625 (1980)] claim as to a lesser included instruction that he or she failed to request at trial," but stating, "We do not preclude the possibility that Beck would require reversal where the failure to request a jury instruction on lesser included non-capital offenses resulted from ineffective assistance of counsel").

To extend Lujan to hold that counsel is never ineffective for failing to assert a potentially valid argument at trial, merely because a habeas court would be barred from considering the merits of that argument if presented as an independent federal claim, would be both unsound and contrary to the logic of Supreme Court precedent. The unreasonable failure to assert potentially winning legal arguments at trial is the very essence of constitutionally deficient performance. If the overlooked legal claim was sufficiently likely to prevail had it been asserted at trial, it simply is irrelevant whether the same claim could prevail before a habeas court as well. Any other conclusion would be squarely at odds with the holding and logic of Kimmelman, 477 U.S. at 375-78. Prior to Kimmelman, the Court had held in Stone v. Powell, 428 U.S. 465, 494 (1976) that a petitioner generally was not entitled to habeas relief for an asserted Fourth Amendment violation. Kimmelman nevertheless held that a habeas petitioner may challenge as ineffective assistance his counsel's failure to assert Fourth Amendment claims at trial, rejecting the argument that Stone barred such a claim. The Court explained:

Were we to extend Stone and hold that criminal defendants may not raise ineffective-assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel. We would deny all defendants whose appellate counsel performed inadequately with respect to Fourth Amendment issues the opportunity to protect their right to effective appellate counsel.

477 U.S. at 378 (citation omitted). The situation here is materially indistinguishable. Claims regarding lesser included offenses in non-capital cases, like Fourth Amendment claims, are not cognizable in habeas proceedings. Yet where the failure to assert such claims at trial constitutes deficient performance, the defendant's independent, personal right to the effective assistance of counsel is implicated, and this right indisputably may be vindicated in habeas proceedings. Accordingly, we reject the district court's conclusion that Florez's ineffective assistance claim is barred by Lujan.

2. Prejudice

We have already noted that the state court did not address the prejudice issue. The district court found no prejudice because "[t]he evidence supported a conviction on both the aggravated burglary and criminal sexual penetration charges." (Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 13 (Mag. D.N.M. Mar. 30, 2001).) In its brief on appeal, the State amplifies this reasoning by arguing that "the jury would still have returned verdicts on aggravated burglary and second-degree CSP, because it necessarily found there was evidence on all of the elements of those crimes." This argument proves too much. If it were true, it would never be ineffective assistance to fail to request a lesser-included offense. The State offers no authority for this extreme position, and we decline to adopt it.

The New Mexico Supreme Court has stated that "the trial court should grant [a lesser included offense instruction] request" if "the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser." State v. Meadors, 908 P.2d 731, 737 (N.M. 1995).⁽⁹⁾ Here, Florez clearly has shown a reasonable probability that the judge would have issued instructions on the lesser included offenses and that the jury would have convicted on those offenses. Thus, Florez was prejudiced by his counsel's failure to request these instructions.

CONCLUSION

For the foregoing reasons, we hold that the state court's denial of Florez's ineffective assistance of counsel claims arising from the failure to request instructions on intoxication, third-degree CSP, and criminal trespass was "contrary to, or an unreasonable application of, Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

^*.

^1. Florez raised several issues in his brief on appeal. He asserted an ineffective assistance of counsel claim stemming from counsel's failure to remove a juror, a due process violation flowing from errors in the jury instructions and in the trial judge's response to a jury question, a double jeopardy violation flowing from his conviction for both second-degree criminal sexual penetration and aggravated burglary, and a challenge to the sufficiency of the evidence regarding the aggravated burglary. By our order of October 22, 2001, we denied a certificate of appealability as to each of these issues and affirmed their dismissal. By the same order, we granted a certificate of appealability for, but did not resolve, the remaining issues raised on appeal: whether trial counsel provided ineffective assistance by failing to request jury instructions on intoxication, third-degree criminal sexual penetration, and criminal trespass. The present opinion disposes of these remaining issues.

^2. The state court record of proceedings is not included in the record on appeal. Accordingly, the facts recited herein are drawn primarily from the magistrate judge's statement of the facts. (Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 2-3 (Mag. D.N.M. Mar. 30, 2001).)

^3. Third-degree CSP becomes second-degree CSP (a more serious charge) when it is committed during the commission of any other felony. N.M. Stat. § 30-9-11D(4).

^4. Because the district court adopted the magistrate's report without qualification in lieu of issuing its own opinion, the magistrate's report is treated herein as the district court's.

^5. The State asserts waiver only as to the third-degree CSP claim. It is clear, and the State does not dispute, that Florez preserved his ineffective assistance claims flowing from failure to request instructions on intoxication and criminal trespass.

^6. Florez's trial counsel was Juan Dawson. New Mexico has suspended Dawson's law license at least twice since he was admitted to practice there in 1997, the second suspension partly the result of professional violations committed pursuant to representing Florez on appeal. In re Juan A. Dawson, Esq., No. 26,466, slip op. at 1, 13 (N.M. Aug. 21, 2000). Dawson was ordered to pay Florez $1,000 in restitution. Id. at 16.

^7. We reject the district court's assertion, offered without explanation or citation, that "Lopez' [sic] testimony that the incident was consensual and that he was had [sic] the intent to engage in sexual relations would have been inconsistent with an intoxication defense theory." Florez v. Williams, No. CIV 00-1753JP/KBM, slip op. at 9 (Mag. D.N.M. Mar. 30, 2001). To the contrary, it would not have been inconsistent to assert both that Ms. Brown had initiated or consented to sexual relations with Florez and that Florez's intoxication deprived him of the ability to form the specific intent to commit burglary at the time of his entry into her home.

^8. We note that even if the jury had accepted the intoxication defense, it would not necessarily have been required to render a verdict of complete acquittal. Voluntary intoxication is no defense to the crimes of third-degree CSP and criminal trespass. Thus, our finding below at part B that counsel was ineffective for failing to request the lesser included offense instructions bolsters our finding here that Florez was prejudiced by counsel's failure to request an intoxication instruction.

^9. The complete statement of the lesser included offense instruction rule is as follows:

[T]he trial court should grant such an instruction if (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense, and therefore notice of the greater offense necessarily incorporates notice of the lesser offense; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

Meadors, 908 P.2d 731, 737 (N.M. 1995) (citation omitted).

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