Opposition Brief — New Mexico v. Forbes (No. 05-644)

Supreme Coun, US

FILED

NO. 05-644

FEB ' 7 2006

_ OFFICE OF THE CLERK

In the

Supreme Court of the United States

STATE OF NEW MEXICO,

Petitioner,

Vv.

HON. JAY W. FORBES, CHIEF JUDGE,

DISTRICT COURT OF NEW MEXICO,

5™ JUDICIAL DISTRICT,

Respondent,

and

RALPH RODNEY EARNEST,

Real Party in Interest.

ON PETITION FOR WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

BRIEF IN OPPOSITION FOR REAL PARTY IN INTEREST,

RALPH RODNEY EARNEST

J}. THOMAS SULLIVAN

COUNSEL OF RECORD FOR

REAL PARTY IN (INTEREST

MEMBER, BAR OF THI

SUPREME COURT

P.O. BOX 17007

LITTLE ROCK, AR. 72222

S01 324-9940

TABLE OF CONTENTS

GURN0 OS REIGNS 6 0 cccccovecscccvecesesceunvcecaseueeuuel ii

Argument in Opposition to Petition for Writ of Certiorari..........

L. The decision of the New Mexico Supreme Court rests on

an “adequate and independent” state law ground precluding review

Gn cra Bp GN CE oc cc ccctcoseccsesusseusseeee ee

Il. The State's petition for writ of certiorari should be denied

because the State fails to satisfy the requirement for issuance of the

writ that the decision of the New Mexico Supreme Court is contrary

pp 0 Gadision of Tile Came, o.oo cscccecsdcecdacasvssdaeennenee

Ill. The State's petition for writ of certiorari should be denied

because the State fails to demonstrate a conflict existing between

the decision of the New Mexico Supreme Court and other state

courts of last resort or United States court of appeals warranting

the exercise of this Court's jurisdiction. ......0.06 6c e nes

IV. The petition should be denied because the limited decision

rendered by the state supreme court does not demonstrate a

compelling reason for the exercise of this Court's jurisdiction. ..... .

Conclusion and Phayer for Rae... ccccccccccscvcccesescosese

“once

iam

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T

TABLE OF AUTHORITIES

United States Supreme Court decisions

Bounds v. Smith, 430 U.S. 817 { 197), SO ile a ee eee 13

Butler v. McKellar, 494 U.S. 407(1990). 2. ee ons eee

Crawford v. Washington, 541 U.S. 36 (2004). 2.66 cee passim

Douglas v. Alabama, 380 U.S. 415 (1965) ©. 0 oo ec ce passim

Earnest v. New Mexico, 484 U.S. 924 (1987)... 6. 6 ce ee a

Espinosa v. Florida, $05 U.S. 1079 (1992)... 2... ec cc cece eee neee il

Griffith v. Kentucky, 479 U.S. 314 (1987)... 2 ee ee ee . . passim

Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993). ........ 6

Lambrix v. Singletary, 520 U.S. 518 (1997)... ee ce en 10, 1,13

ER rr l

Liev. Virginia, S27 US. VIG (CIDGD). .. cece ccccecccccee: . 2, 14, tS

Limetter ¥. Walker, 361 U.S. G18 (IDES)... wc ccccccccccccscccecess 4

Michigan v. Long, 463 U.S. 1032 (1983)... 2.2 66 0 oo oo cc ce cc eee! 3

New Mexico v. Earnest, 477 U.S. 848 (1986) . 2. 6. cece l

Pennsylvania v. Finley, 481 U.S. 551 (1987)... 2... .. rrr Torr. 13

Schiro v. Summerlin, 542 U.S. 348 (2004). 2... cece 13

Teague v. Lane, 489 U.S. 288 (1989)... 2... Se

iii

New Mexico decisions

Beavers v. Johnson Controls World Services, 881 P.2d 1376

Geis CIN c co ecncccosccuscesesenehcosacequéeescecncstces 6

Jackson v. State, 925 P.2d 1195 (N.M. 1996)... 2.2.02. 6 6c ee ee eee 5,7

Santillanes v. State, 849 P.2d 358 (N.M. 1993)... 0.2.66. c cece eee ees 4,5

State v. Boeglin, 731 P.2d 943 (N.M. 1987)... 2.2... cee eee eee 2

State v. Earnest, 703 P.2d 872 (N.M. 1985). ... 2.22.6 eee eee eee passim

State v. Earnest, 744 P.2d 539 (N.M. 1987)... 2... 6 eee eee ees 2, 16

State v. Forbes and Earnest, 119 P.3d 144 (N.M. 2005)........... passim

State v. Kirby, 930 P.2d 144 (N.M. 1996)... 2.2.2.2... cece eee ceeeees 5

State v. Mascarenas, 4 P.3d 1221 (N.M. 2000). .............22.24-. 4,5

Decisions from other jurisdictions

Brown v. Uphoff, 381 F.3d 1219 (10" Cir. 2004) ........... 14, 15, 16, 17

Commonwealth v. Harper, 516 A.2d 319 (Pa. 1986)... 2... 6. 6c cece 7

Earnest v. Dorsey, 87 F.2d 1123, 1130-33 (10" Cir. 1996), cert. denied,

CU oh oe ee eee 2

Constitutional, statutory and rules provisions

U.S. Const., art. VI (Supremacy Clause)... ........00 ceceeeees passim

Se SE Gd ID GE DU ccc cccnccecccccccesevcescecccesess 15

Antiterrorism and Effective Death Penalty Act................... 15, 16

ARGUMENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The New Mexico Supreme Court relied on Crawford v. Washington,

541 U.S. 36 (2004), in reviewing Real Party in Interest Earnest’s state

habeas corpus challenge to his conviction obtained as a result of the

admission of the inculpatory custodial statement given by a non-testifying

accomplice, Boeglin, at trial. State v. Forbes and Earnest, 119 P.3d 144,

148-49 (N.M. 2005). The state supreme court originally reversed his

conviction in State v. Earnest, 703 P.2d 872, 874-75 (N.M. 1985) [Earnest

1}', applying this Court’s decision in Douglas v. Alabama, 380 U.S. 415

(1965). In reversing, the court held:

... Boeglin’s prior statement made to police officers shortly after his

arrest was not made during the course of any judicial proceeding and

defendant was in no way afforded an opportunity to cross-examine

Boeglin. We therefore determine that admission of Boeglin’s prior

statement was highly prejudicial, violated defendant’s confrontation

rights, and deprived defendant of meaningful cross-examination.

703 P.2d at 876.

Following the reversal, this Court granted the State’s petition for writ

of certiorari and after argument, vacated the judgment and remanded for

reconsideration in light of the Court’s decision in Lee v. /ilinois, 476 U.S.

530 (1986). New Mexico v. Earnest, 477 U.S. 848 (1986) [Earnest Il]. As

' Earnest relies on the same designations used by the New Mexico Supreme Court in its

opinion. See State v. Forbes and Earnest, 119 P.3d at 145.

the state court observed, the remand occurred more than a year after the

decision rendered in Earnest’s direct appeal. 119 P.3d at 146. On remand,

the state supreme court, persuaded by the concurring opinion of then-Justice

Rehnquist, joined by the Chief Justice and Justices Powell and O’Connor,

477 U.S. at 649, concluded that Boeglin’s uncrossed statement was reliable’

as a statement against interest and affirmed Earnest’s conviction. State v.

Earnest, 744 P.2d 539, 539-40 (N.M. 1987) (Earnest II).

Following affirmance, this Court denied Earest’s petition for

certiorari, Earnest v. New Mexico, 484 U.S. 924 (1987), and his subsequent

state and federal habeas corpus applications were also rejected. Earnest v.

Dorsey, 87 F.2d 1123, 1130-33 (10" Cir. 1996), cert. denied, 519 U.S. 1016

(1996).

Nearly twenty years later the case returns to this Court.’

? Boeglin was later tried and convicted despite his testimony that police had suppressed

evidence supporting his defense of duress in participating in the murder of the victim,

Eastman. State v. Boeglin, 731 P.2d 943, 949-50 (N.M. 1987). The State relies on the

court's opinion in Boeglin in its recitation of facts, see Petition for Wnt of Certiorari, at

2, but offers no explanation for the dubious proposition that Boeglin’s statement resulting

in Farnest’s conviction could be considered sufficiently reliable to continue to warrant

Earnest’s incarceration while jurors considering Boeglin’s credibility at his own tral

rejected his explanation of the events surrounding lastman’s murder, instead convicting

him of capital murder.

See J. Thomas Sullivan, Twice Grilled, 5 J. App. Prac. & Process, 151, 153-55 (2003)

(noting vote in Lilly v Virginia, 527 U.S. 116 (1999) supported New Mexico Supreme

Court disposition in Earnest 1).

Nw

I.

The decision of the New Mexico Supreme Court rests on an“ adequate and

independent” state law ground precluding review on certiorari by this

Court

The State relies on the Supremacy Clause of the United States

Constitution in arguing that the New Mexico courts are barred from

affording Earnest relief based upon their review of this Court’s decision in

Crawford v. Washington, 541 U.S. 36 (2004). Yet, the State offers no

authority for the proposition that New Mexico is barred from reconsidering

Earnest’s conviction in light of Crawford. The state courts correctly

understand Crawford to be an affirmation of the continuing viability of

Douglas v. Alabama, 380 U.S. 415 (1965), the controlling decision of this

Court interpreting the right to confrontation in the context of admission of

uncrossed, custodial, accomplice statements at the time of Earnest’s trial and

direct appeal to the New Mexico Supreme Court. Crawford, at 57.

The decision of the New Mexico Supreme Court rests on adequate

and independent state law grounds that preclude review on federal

constitutional grounds by writ of certiorari. Michigan v. Long, 463 U.S.

1032, 1041-42 (1983). The court below concluded that Crawford did not

announce a “new rule” of constitutional criminal procedure, but instead, that

the “result was ‘dictated by precedent existing at the time” it decided

Earnest’s case on the initial direct appeal, citing Teague v. Lane, 489 U.S.

288, 301 (1989). Consequently, the court concluded that Earnest was

entitled to benefit from a retroactive application of the principle affirmed in

Crawford precisely because that principle governed the trial and direct

appeal of his case prior to this Court's action in Earnest II vacating the

judgment reversing his conviction. 119 P.3d at 147.

In rejecting the State’s argument that Teague bars retroactive

application of the Crawford principle in reviewing Earnest’s conviction, the

state court noted the relevance of Teague for retroactivity analysis in its

earlier opinion in State v. Mascarenas, 4 P.3d 1221, 1228 (N.M. 2000).

There, the state supreme court distinguished between the announcement of a

“new rule” and a “clarification” of an existing rule. /d. at 1229. But, more

importantly, the Mascarenas court also observed that it had traditionally

followed the Linkletter v. Walker, 381 U.S. 618 (1965) retroactivity test

subsequently rejected by this Court in Griffith v. Kentucky, 479 U.S. 314,

328 (1987).

New Mexico has consistently applied the Linkletter approach to

retroactivity instead of adopting this Court’s approach in Griffith and

Teague. See Santillanes v. State, 8349 P.2d 358, 367-68 (N.M. 1993) (relying

on coufts’ inherent power to give their rulings prospective or retroactive

application); Jackson v. State, 925 P.2d 1195 (N.M. 1996) (emphasizing the

case-by-case nature of the prospective/retroactive inquiry and again citing

Linkletter ), and State v. Kirby, 930 P.2d 144 (N.M. 1996) (applying hoiding

in State v. Yarborough, 930 P.2d 131 (N.M. 1996) retroactively).

In Santillanes, the state supreme court characterized its approach to

retroactivity:

It is within the inherent power of this Court to give its decisions

prospective or retroactive application without offending constitutional

principles.

849 P.2d at 366. In Mascarenas, tlie court noted its continuing fidelity to the

flexible approach to retroactivity as a matter of state law:

In the context of criminal cases, [State v.}] Ulibarri [994 P.2d 1164

(N.M. App. 1999) aff'd 997 P.2d 818 (N.M. 2000) appears to

continue New Mexico's departure from United States Supreme Court

precedent on the issue of retroactivity by relying on the criteria set

forth in Linkletter and echoed by Santillanes. See also, Jackson v.

State, 1996- NMSC-054, 4 6, 122 N.M. 433, 925 P.2d 1195 (citing

with approval Santillanes’ and Linkletter's case-by-case determination

of prospective or retroactive application of new rules); see also

Beavers v. Johnson Controls World Servs., 118 N.M. 391, 393, 881

P.2d 1376, 1378 (1994) (expressly declining to follow the United

States Supreme Court's rule of universal retroactivity in civil cases

announced in Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 113,

113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)). We note that our discussion

of the issue of retroactive or prospective application of new rules is

limited only to an explanation of why it is inapplicable to this case).

4 P.3d at 1228, n.5.

New Mexico applies a far broader doctrine of retroactivity in civil

cases than followed by this Court in Harper v. Virginia Department of

Taxation, 509 U.S. 86 (1993). Beavers v. Johnson Controls World Services,

881 P.2d 1376, 1383 (N.M. 1994) (applying a presumption of retroactivity in

civil cases). Presumably, if state conformity to federal retroactivity

principles is compelled by the Supremacy Clause, as the State here argues,

then this principle would seemingly apply to require all jurisdictions to

follow Harper as a matter of federal constitutional command.

But Earnest reads Griffith and Teague only to require retroactive

application of “new rules” of federal constitutional procedure to benefit

criminal defendants in certain situations. Thus, when a defendant preserves

a claim still pending in the direct appeal process when the Court articulates a

“new rule” that would require a favorable disposition in this or lower courts,

Griffith affords that defendant the benefit of the “new rule.” 479 U.S. at

323. Otherwise, Teague limits the requirement for state application of a

new rule except when the rule is expressly made retroactive by this Court.

Neither Griffith nor Teague addresses the retroactivity doctrine

claimed by the State here as dictated by the Supremacy Clause—that state

courts are constitutionally prohibited from applying the decisions of this

Court retroactively as a matter of state policy. In fact, flexibility in

retroactivity policy may serve a legitimate policy. In Jackson v. State, 925

P.2d 1195 (N.M. 1996), the court quoted with approval the following

language from the concurring opinion in Commonwealth v. Harper, 516

A.2d 319, 323-24 (Pa. 1986):

Generally, where the purpose of a new constitutional doctrine is to

cure a defect in the criminal procedure which impairs the truth finding

function, and thus raises doubt as to the validity of the guilty verdict,

the rule will be given full retroactive effect.

Here, of course, the admission of the testimonial statement made by a non-

testifying accomplice and, thus, not subjected to cross-examination,

implicates the very concern for validity of the guilty verdict underlying the

promise of confrontation, as recognized in Crawford.

Because New Mexico has applied a broader policy of retroactivity in

both civil and criminal contexts than this Court, the State can prevail only if

the Supremacy Clause bars a state from articulating a policy providing for

retroactive applicatic \ of this Court’s decisions even if deemed essential to

furthering a legitimate state policy. Here, the state court supreme court has

expressly predicated its determination not on any mechanistic formula, but

on its interest in promoting justice. The court concluded:

Because Earnest did not have the opportunity to cross-examine

Boeglin, the tape recording and transcript of his statement were

inadmissible under our reading of United States Supreme Court

precedent that existed at the time of Earnest J, which Crawford

clarifies has always been a correct interpretation of the law. Granting

Earnest a new trial is consistent with our responsibility "to do justice

to each litigant on the merits of his own case." Desist v. United States,

394 U.S. 244, 259, 89 §.Ct. 1048, 22 L.Ed.2d 248 (1969) (Harlan, J.,

dissenting). Our decision is limited to the very special facts of this

case, highlighted by the fact that the very law this Court applied to

Earnest's case twenty years ago has now been vindicated, which

entitles him now to the same new trial he should have received back

then. Accordingly, we affirm the district court, lift the stay, and

remand for execution of the Writ of Habeas Corpus, affording the

State the opportunity to retry Earnest.

119 P.3d at 148-49.

The decision of the lower court rests on application of state

retroactivity doctrine. In the absence of any authority for the proposition

that the Supremacy Clause precludes the states from applying more flexible

approaches to retroactivity than that dictated by Griffith and Teague for the

benefit of individual criminal defendants, the state court’s ruling rests on an

adequate and independent state law ground precluding review by this Court

on certiorari.

I.

The State's petition for writ of certiorari should be denied because the State

fails to satisfy the requirement for issuance of the writ that the decision of

the New Mexico Supreme Court is contrary to a decision of this Court.

The State fails to advance any authority for the proposition that New

Mexico is barred by the Supremacy Clause from applying a doctrine of

retroactivity different from that articulated in the decisions of this Court.

Even assuming that the decision of the New Mexico Supreme Court--which

relies on prior decisions in which federal constitutional retroactivity

principles have been discussed--does not rest on an adequate and

independent state law ground, the State’s reliance on Teague v. Lane, 489

U.S. 288 (1989), is misplaced.

Teague addressed constitutional retroactivity doctrine in response to

the need to rationalize the Court’s approach to retroactivity determinations

in order to maximize fairness and uniformity while achieving reasonable

expectations of finality, particularly in state criminal prosecutions. 489

U.S. at 309-310. The approach adopted in Teague and Griffith v. Kentucky,

479 U.S. 314, 323 (1987), essentiaily ensures retroactivity of new rules only

for those cases in which similar preserved ciaims of error are pending in the

direct appeal upon the announcement of a new rule or for new rules that fit

within one two exceptions to the general principle of prospective-only

application of new rules. 489 U.S. at 310-15. Teague also recognizes that

rules dictated by prior decisions are not “new” in this sense and thus. do not

tall within the generai non-retroactivity approach to application of new

rules. /d at 301.

The thrust of the State's argument is that certiorari IS appropriate

because the New Mexico Supreme Court is required to apply the Teague

retroactivity dectrine in the reviewing challenges to state convictions But

the State's analysis actually rests on the question of whether Crawford

announces a new rule. Regardless of whether the New Mexico Supreme

Court correctly conctuded that Crawford supports Eamest’s argument based

on the law in effect at the time of his trial and original direct appeai--even if

the court below erred in this regard--the State offers no support from

Teague ot other decisions of this Court for its argument that the Supremacy

Clause bars New Mexico from essentially epplying Crawford retroactively.

Similarly, the State's reliance on Lambrix v Singletary, $20 U.S. 518,

527-28 (1997) fails to support its argument that the Supremacy Clause

commands New Mexico not to afford a state court defendant the benefit of

an arguably “new rule” announced by this Court. There. the Court simply

applied the test for determining whether a rule is “new” and concluded that

the rule of Espinosa v Florida, SOS U.S. 1079 (1992), was not dictated by

precedent. S20 US. at $28

The State also relies on the Court's analysis in Butler v. McKellar.

494 US. 407, 412 (1990), where, the Court reiterated the Teague

retroactivity formula in concluding that a “new™ rule would not be applied

retroactr ely But the Court also elaborated on the underlying concerns

supporting the limitations on retroactivity imposed in Teague:

Teague further observed

[!Jn many ways the application of new rules to cases on

collateral review may be more intrusive than the enjoining of [state]

criminal prosecutions ... for it continually forces the States to

marshal resources in order to keep in prison defendants whose trials

and appeals conformed to then-existing constitutional standards

Furthermore, as we recognized in Engle v. Isaac, [456 U.S. 107, 128,

n. 33, 102 S.Ct. 1558, 1572, n. 33, 71 L.Ed. 2d 783 (1982),] [s}tate

courts are understandably frustrated when they faithfully apply

existing constitutional law only to have a federal court discover,

during a [habeas] proceeding, new constitutional commands.’ .. See

also Brown v. Allen, 344 U.S. [443], $34, 73 $.Ct. 397, 423, 97 L.Ed.

469 [ (1953) | Jackson, J., concurring in result) (state courts cannot

‘anticipate, and so comply with, this Court's due process requirements

or ascertain any standards to which this Court will adhere in

prescribing them’).” Teague, supra, at 310, 109 S.Ct., at 1075

(plurality opinion) (emphasis in original; some internal citations

omitted ).

The “new rule” principle therefore validates reasonable, good-

taith interpretations of existing precedents made by state courts even

though they are shown to be contrary to later decisions.

494 US. at 413-14.

The concern with finality that underscores the Teague rationale is

designed to protect states from virtually unlimited, continuing exposure to

the re-litigation of cruminal cases that would be necessitated by universal

retroactive application of “new” rules. But in the instant case, the state

supreme court has implicitly concluded that even the consideration of

finality does not warrant denial of state habeas relief.

The State concludes its petition pleacing: “Finality is all Petitioner

sevks here.” [Petition for Writ of Certiorari, at 17]. But the state supreme

court focused on a different concern:

Granung Larnes: a new trial is consistent with our responsibility “to

do justice to each litigant on the merits of his own case.” Desist v.

United States, 394 U.S. 244, 259, 89 §.Ct. 1048, 22 L.Ed.2d 248

(1969) (Harlan, J., dissenting). Our decision is limited to the very

special facts of this case, highlighted by the fact that the very law this

Court applied to Earnest's case twenty years ago has now been

vindicated, which entitles him now to the same new trial he should

have received back then. Accordingly, we affirm the district court, lift

the stay, and remand for execution of the Writ of Habeas Corpus,

aftording the State the opportunity to retry Earnest.

119 P.3d 148-49.

The State demonstrates no good reason why a jurisdiction may not

extend the benefits of a “new” rule to those state court defendants as a

matter of fairness. Here, the New Mexico Supreme Court has concluded

that the interests of justice dominate the concern for finality. None of the

decisions of this Court relied upon by the State in its petition, Teague,

12

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The State's petition for writ of certiorari should be denied because the State

fails to demonstrate a conflict existing between the decision of the New

Mexico Supreme Court and other state courts of last resort or United States

court of appeals warranting the exercise of this Court's jurisdiction.

Earnest recognizes that the State is able to contrast the decision below

from decisions of other courts holding that Crawford both announces a

“new” rule of constitutional criminal procedure and that the rule does not fit

within either of the Teague exceptions to the general policy rejecting

retroactive application of new rules. [Petition for Writ of Certiorari, at 8-9).

However, in framing the question presented, the State has elected to argue

only that this Court should assert jurisdiction because the disposition in

State v. Forbes and Earnest conflicts with the Tenth Circuit's holding in

Brown v. Uphoff, 381 F.3d 1219 (10" Cir. 2004).

Interestingly, in Brown, the Tenth Circuit concluded that the

Wyoming Supreme Court had upheld a conviction obtained through

admission of a non-test:fying co-defendant s confession to police and in

doing so “acted contrary to clearly established federal law.” 381 F.3d at

1225. Nevertheless, the court deried habeas, finding no Confrontation

Clause violation and holding that Crawford could not be applied

retroactively because it announced a “new” rule. /d. at 1225-28. Instead, it

observed that prior to this Court's disposition in Lilly v. Virginia, 527 US.

i4

116 (1999), and the positions taken by the Lilly plurality and Justice Scalia,

concurring, id at 143, no Confrontation Clause violation was demonstrated

by reliance on corroborating evidence to support an inference that the non-

testifying accomplice’s statement was admissible as a declaration against

interest. 381 F.3d at 1227, n. 6.

The State’s reliance on Brown v. Uphoff as the basis for conflicting

opinions arguably supporting review by certiorari pursuant to Rule 10(b) of

the Rules of the Supreme Court is not persuasive for two different reasons.

First, Brown arises in the context of a federal habeas proceeding in

which the Tenth Circuit applied a deferential approach, even though the

claim was analyzed under pre-AEDPA standards and the court engaged in a

de novo review of the reliability of the declarant’s statement. 381 F.3d at

1225. Of course, AEDPA mandated-deference may require a federal

habeas court to defer to a state court decision relying on the relaxed

standard for confrontation subsequently rejected in Crawford.

Earnest’s claim arises in a different context, however, because the

state supreme court was not confined by deference to any other court's

disposition. Rather, the New Mexico Supreme Court was free to determine

that its previous holding affirming Earnest’s conviction on remand from thts

Court in Earnest III was erroneous in light of Crawford. That is precisely

what happened in the court below when it concluded:

in Crawford, therefore, the United States Supreme Court confirmed

what the New Mexico Supreme Court announced in Earnest ]--that a

custodial statement by an alleged accomplice to a police officer is not

admissible unless the declarant is unavailable and the defendant had

an opportunity to cross-examine the declarant. Because Earnest did

not have the opportunity to cross-examine Boeglin, the tape recording

and transcript of his statement were inadmissible under our reading of

United States Supreme Court precedent that existed at the time of

Earnest I, which Crawford clarifies has always been a correct

interpretation of the law.

119 P.3d at 148

Second, the reasoning of the New Mexico Supreme Court does not

really lead to an inference of conflict with the decision in Brown v. Uphoff

warranting review by this Court. The disposition in Earnest was expressly

limited by the state court to the unique facts of the case. 119 P.3d at 149

(phrasing its holding: “Under the unique facts and procedural

circumstances of this case... “) The court did not hold as a general rule

that Crawford is to be applied retroactively to other New Mexico

defendants, as even the dissenting justice conceded:

| recognize that the majority limits its retroactive application of

Crawford to the specific facts of this case and to this one habeas

petitioner.

119 P.3d at 149, Serna, J., dissenting; [Petition for Writ of Certiorari, at 12).

16

The State's argument, predicated on the express language of its

question presented for review, does not demonstrate that a certworthy

claim. Even if the court's rationale was incorrect in its characterization of

Crawford as essentially correcting an error and re-establishing the viability

of the controlling constitutional rule at the time of Earnest’s trial rather than

announcing a “new” rule, the state court has not announced a rule so

contrary to the holdings of this Court, or so in conflict with the holding of

the Tenth Circuit in Brown v. Uphoff, as to warrant review. The policy

considerations underlying deferential treatment of state court dispositions in

federal habeas, comity and finality, simply are not implicated by the very

limited holding of the New Mexico Supreme Court in Earnest.

17

IV.

The petition should be denied because the limited decision rendered by the

state supreme court does not demonstrate a compelling reason for the

exercise of this Court's jurisdiction.

Finally, Earnest submits that this Court's exercise of its jurisdiction

by writ of certiorari should not only be informed by questions of legal

interpretation, but by the context in which the court below resolved the

claim he raised in state habeas corpus. The State pleads for finality in its

petition, [Petitioner for Writ of Certiorari, at 17], but the state supreme

court, the entity arguably most likely to zealously seek finality to protect its

judicial and crirninal justice systems, rejected that consideration in favor of

granting relief on Earnest’s petition.

The relief sought by the State, in contrast, would ensure that Earnest

remain incarcerated on a conviction that Crawford now demonstrates was

improperly obtained. Earnest was not tried subsequent to any decision of

this Court holding that a non-testifying accomplice’s confession was

contemplated as consistent with the protections of the Confrontation Clause.

Instead, as the state court held, at the time of his rial and the direct appeal,

the Sixth Amendment, as interpreted and applied by this Court in Dougilas

v. Alabama, excluded such a statement in the absence of some opportunity

for meaningful cross-examination.

Moreover, the state supreme court has not ordered Earnest released,

but instead, remanded the cause for new trial. The court denied the State's

motions to stay and recall the mandate unanimously and the State has

indicated its intent to retry Earnest. If, in fact, it can do so at this point in

time, it has suffered no prejudice from the supreme court's ruling. On the

other hand, if the prosecution cannot offer live, in-court testimony affording

Earnest the opportunity for cross-examination, then the clear meaning of

Douglas and Crawford js that it must offer sufficient evidence other than

Boeglin’s confession to police

The State, in its petition to this Court, argues that Earnest should

remain confined on a conviction that Crawford unequivocally demonstrates

was obtained in violation of his nght to confrontation. It asks this Court to

so on the unsupported claim that the Supremacy Clause denies to state

courts the nght to formulate and apply their own doctrines of retroactivity

pursuant te state law and tradition. And it does so by asking this Court to

reject the state court's exercise of wadicial discretion to achieve justice

Our decision ts limited to the very special facts of this case,

highlighted by the fact that the very law this Court applied to

Larnest's case twenty years ago has now been vindicated, which

entitles him now to the same new trial he should have received

back then

119 P.3d at 148-49

CONCLUSION AND PRAYER FOR RELIEF

Based on the foregoing argument, Real Party in Interest Earnest

moves the Court deny the petition for writ of certiorari to review the

judgment of the New Mexico Supreme Court

Respectfully submitted this 17" day of February, 2006

Aas Mh

THOMAS SULI a AN “™

A PORNLY AT LAW

COUNSEL FOR REAL PARTY IN

INTEREST, RALPH RODNEY EARNEST

P.O. BOX 17007

LITTLE ROCK, ARKANSAS 72222

$01/324-9940