Sais v. State

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: February 24, 2025

No. S-1-SC-39658

CHRISTOPHER SAIS,

Petitioner,

v.

STATE OF NEW MEXICO, and
LEON MARTINEZ, Warden,

Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Daniel A. Bryant, District Judge

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Luz C. Valverde, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Raúl Torrez, Attorney General
Teresa Ryan, Assistant Solicitor General
Santa Fe, NM

for Respondents

DECISION

VARGAS, Justice.

{1} This matter comes before the Court upon the grant of Defendant Christopher
Sais’s Rule 12-501 NMRA petition for a writ of certiorari seeking review of the district
court’s denial of habeas relief after Defendant was convicted of, among other offenses,
two counts of criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-
11 (2009). As we discuss herein, we vacate one of Defendant’s CSP convictions
because it violates double jeopardy and otherwise affirm on all other grounds.

I. BACKGROUND

{2} The circumstances giving rise to Defendant’s convictions arose out of an unusual
set of facts: Defendant entered a hotel room and sexually assaulted his friend’s
pregnant girlfriend. We exercise our discretion to resolve Defendant’s appeal by non-
precedential decision, see Rule 12-405(B) NMRA, and thus limit our recitation of the
facts accordingly, incorporating additional facts as necessary to our disposition, see
State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361 (“[U]npublished
orders, decisions, or memorandum opinions are not meant to be cited as controlling
authority because such opinions are written solely for the benefit of the parties. Since
the parties know the details of the case, such an opinion does not describe at length the
context of the issue decided.”).

II. DISCUSSION

A. Double Jeopardy

{3} Defendant first contends that his two CSP convictions violate double jeopardy.
We agree.

{4} Under the United States and New Mexico Constitutions, “No person shall . . . be
twice put in jeopardy” for the same offense. U.S. Const. amend. V; N.M. Const. art. II, §
15. Defendant was convicted of two counts of CSP under the same statute: Section 30-
9-11, presenting a unit of prosecution issue. See Swafford v. State, 1991-NMSC-043, ¶
8, 112 N.M. 3, 810 P.2d 1223 (stating that unit of prosecution double jeopardy issues
arise when “the defendant has been charged with multiple violations of a single statute
based on a single course of conduct”). In a unit of prosecution case, we “analyze the
statute at issue to determine whether the Legislature has defined the unit of
prosecution.” State v. Swick, 2012-NMSC-018, ¶ 33, 279 P.3d 747. “If the unit of
prosecution is clear” from the face of the statute, the Court need not proceed further.
See id. “If the unit of prosecution is not clear from the statute, . . . [we] must determine
whether a defendant’s acts are separated by sufficient ‘indicia of distinctness’ to justify
multiple punishments.” Id. (citation omitted). Our review is de novo. Id. ¶ 10 (“A double
jeopardy challenge is a constitutional question of law which we review de novo.”).

{5} We have previously explained that the CSP statute does not identify the unit of
prosecution. See Herron v. State, 1991-NMSC-012, ¶ 8, 111 N.M. 357, 805 P.2d 624
(concluding that Section 30-9-11 “does not indicate unambiguously whether the
[L]egislature intended . . . to create a separate offense for each penetration occurring
during a continuous sexual assault”). Because the statute does not identify the unit of
prosecution, Herron instructs that we examine whether the following six factors give rise
to distinct counts of CSP:
(1) temporal proximity of penetrations (the greater the interval between
acts the greater the likelihood of separate offenses); (2) location of the
victim during each penetration (movement or repositioning of the victim
between penetrations tends to show separate offenses); (3) existence of
an intervening event; (4) sequencing of penetrations (serial penetrations of
different orifices, as opposed to repeated penetrations of the same orifice,
tend to establish separate offenses); (5) [the] defendant’s intent as
evidenced by his conduct and utterances; and (6) number of victims.

Id. ¶ 15.

{6} Here, the conduct giving rise to Defendant’s two CSP charges involved
Defendant licking Victim’s vagina (cunnilingus) followed by penile penetration of her
vagina. In an interview with law enforcement, Victim stated that the assailant’s licking of
her vagina “was quick, I think he just did it just so that he could insert . . . . It was like, I
mean it all was just so like, I mean it was very quick.” A supplemental police report does
not provide any additional detail or support of intervening conduct. An FBI special
agent’s report documenting the agent’s interview of Victim provides the same factual
basis without any reference to cunnilingus. And in his amended habeas petition,
Defendant provided the same summary of events. Victim testified that the attack lasted
less than two minutes.

{7} Taking these circumstances into consideration, each of the Herron factors weigh
in Defendant’s favor because the facts suggest that the episode was brief, Victim was
not repositioned between offenses, there was no intervening event, a single orifice was
penetrated, Defendant did not make any statements, and there was a single victim.
Absent any evidence supporting distinct counts, we conclude that Defendant was twice
put in jeopardy for the same offense and that one of his convictions for CSP must be
reversed.

{8} We now turn to Defendant’s remaining arguments with respect to (1) pre-
indictment delay, (2) counsel of choice, (3) alleged discovery violations, and (4) the
denial of an evidentiary hearing.

B. Pre-Indictment Delay

{9} Defendant alleges that he was prejudiced by pre-indictment delay. We have
previously explained that, although “the statutes of limitation provide the primary
protection against delay-induced prejudice, the United States Supreme Court has held
that the due process clause of the fifth amendment provides additional, albeit limited,
protection against improper preaccusation delay.” Gonzales v. State, 1991-NMSC-015,
¶ 4, 111 N.M. 363, 805 P.2d 630. To prove such a claim, a defendant bears the burden
of establishing that he was (1) prejudiced from a delay and (2) “that the state knew or
should have known delay was working a tactical disadvantage on [the] defendant.” Id.
¶¶ 6, 10. If the defendant meets the burden, “the burden of production shifts to the
prosecution to articulate a legitimate reason for the delay. In that event, the defendant
still may prevail upon a showing that the articulated reason was a mere pretext.” Id. ¶
10.

{10} Applying this test, the district court denied habeas relief, concluding that
Defendant failed to meet his burden because he failed to establish that the delay was
working as a tactical disadvantage. It further explained Defendant failed to establish that
the State’s asserted reason for the delay—lack of police reports—was pretext. Rather
than address the habeas court’s conclusions, Defendant reargues the merits of the
claim; Defendant’s brief in chief does not reference the habeas court’s findings in this
respect at all. Defendant’s reply is likewise unpersuasive, shifting focus to the fact that
the habeas court did not hold an evidentiary hearing (a separate issue in this
proceeding discussed below), as well as the seemingly unrelated and unsupported fact
that “the investigating officer . . . was arrested for his own misconduct prior to the State
dismissing [other] drug charges against [Defendant].”

{11} The State contends that the deficiencies set out above are determinative
because upon failure to attack a finding, “the finding shall be deemed conclusive.” Rule
12-318(A)(3)-(4) NMRA. We agree. More importantly, however, Defendant’s claims are
unavailing in view of the narrow purpose of a Rule 12-501 petition, which is limited to
“review of denials of habeas corpus petitions by the district court,” not to hear the merits
of the claim anew. Rule 12-501(A). Based on these deficiencies, we do not further
consider the issue.

C. Counsel of Choice

{12} Defendant next claims that the district court in the underlying trial “denied his
right to counsel of his choice.” This claim is not properly before the Court because, as
Defendant concedes, the issue was addressed on the merits by the Court of Appeals in
his direct appeal. See State v. Sais, A-1-CA-37650, mem. op. ¶¶ 3, 4 (N.M. Ct. App.
Feb. 10, 2020) (nonprecedential). “[A] defendant may not seek post-conviction relief for
issues raised on appeal that were decided on the merits against [the] defendant.” State
v. Gomez, 1991-NMCA-061, ¶ 5, 112 N.M. 313, 815 P.2d 166.

{13} However, even if Defendant were not barred from raising the issue because of a
previous determination on the merits in his direct appeal, he failed to raise the issue in
his habeas proceedings before the district court. When the State raised the issue of
preservation, Defendant acknowledged the State’s contention but failed to refer this
Court to any portion of the habeas record showing that he preserved this issue for
review. Because Defendant did not raise the issue in his habeas petition and the
habeas court did not rule upon it, the issue is not properly before this Court; as we
explained above, the scope of our 12-501(A) review only encompasses a petition for a
writ of certiorari seeking review of a denial of habeas relief. Therefore, regardless of
whether the issue was (1) addressed by the Court of Appeals on the merits, or (2) not
addressed on the merits and subsequently not raised in habeas proceedings, either
option leads to the same result. It is not properly before this Court.
D. Alleged Discovery Violations

{14} Defendant also contends that the State committed various discovery violations
and asks us to reverse his convictions on this ground. In response, the State correctly
notes that Defendant has failed to explain (1) how or where the issue was preserved,
and (2) what order, ruling, or portion of the habeas court’s order he is challenging.
Rather than address any of the State’s contentions that this issue is not properly before
the Court and therefore there is “no basis for granting the requested relief,” Defendant
did not respond to the State’s argument in his reply. Because Defendant abandoned
this argument in his reply, see State v. Jones, 1964-NMSC-028, ¶ 4, 73 N.M. 459, 389
P.2d 398 (declining to consider issues that were abandoned in a reply brief), and the
substance of his argument is unclear and undeveloped, see Elane Photography, LLC v.
Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (explaining that the appellate court does
not review unclear or undeveloped arguments), we do not address it.

E. Evidentiary Hearing

{15} Finally, Defendant asserts that the habeas court erred by denying his petition
without an evidentiary hearing. As the habeas court recognized, whether an evidentiary
hearing is required in habeas is governed by Rule 5-802(H)(4) NMRA. This rule vests
the habeas court with authority to “determine whether an evidentiary hearing is required.
If it appears that an evidentiary hearing is not required, the court shall dispose of the
petition without an evidentiary hearing.” Id.

{16} Relying upon this rule and relevant precedent, the habeas court concluded that
“[t]he extensive exhibits, transcripts, and copies of the record filed by Petitioner provide
sufficient facts for the [c]ourt to rule without an evidentiary hearing. [Only i]f a petition
raises factual issues which cannot be conclusively determined from the records of the
action, then the petitioner is entitled to an evidentiary hearing.” Order on Am. Habeas
Corpus Pet. of Christopher Sais, Sais v. State, D-1215-CR-2016-00560, at 23 (12th
Jud. Dist. Ct. Sept. 12, 2022). Before reaching its conclusion, the district court held a
preliminary disposition hearing under Rule 5-802(H)(4) and sought input from the
parties as to whether an evidentiary hearing was necessary. Importantly, at the hearing,
the habeas court specifically asked Defendant’s counsel, “If the court decides that I
want an evidentiary hearing, based on your theory of the case, what are you going to
present at that hearing? What do you find relevant?” Defendant’s counsel responded,
“As far as your question for the evidentiary hearing . . . , I do think the record speaks
enough for itself. If anything, [Defendant] could provide clarification” on certain
evidentiary and other issues if the Court so ordered. Defendant’s concession that the
record speaks for itself aligns with the operative language in our precedent establishing
that an evidentiary hearing is not required when “the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief.” State v. Franklin,
1967-NMSC-151, ¶¶ 6, 11, 78 N.M. 127, 428 P.2d 982 (internal quotation marks and
citation omitted).

{17} To the extent the district court conflated which hotel room was rented by
Defendant and which room was rented by Victim’s boyfriend, we are unpersuaded that
such a discrepancy warrants an evidentiary hearing because it does not alter the
habeas court’s conclusion that “[t]he evidence at trial showed [Defendant] did not obtain
the second key to [the room] until 3 AM . . . just before he entered the room and raped
[V]ictim.” Order on Am. Habeas Corpus Pet. of Christopher Sais 18. Therefore,
Defendant’s briefs before this Court fail to establish that the district court erred in
declining to hold an evidentiary hearing. The ancillary factual dispute over the hotel
rooms does not impact the habeas court’s conclusion that an evidentiary hearing was
unnecessary because authority to enter a hotel room does not give one permission to
sexually assault anyone in that room, and therefore does not upset the habeas court’s
conclusion that “‘the prisoner is entitled to no relief’” with respect to his CSP convictions.
See Franklin, 1967-NMSC-151, ¶ 6 (citation omitted). Here, Defendant provides no
clear basis explaining what benefit would be served by ordering an evidentiary hearing.
He also does not challenge the habeas court’s repeated conclusions that the evidence
of guilt, including DNA evidence, “was overwhelming.” Ultimately, the lack of clarity in
Defendant’s briefs before this Court as to why an evidentiary hearing is warranted is
especially relevant in light of Defendant’s concession before the habeas court that “the
record speaks enough for itself.” The habeas court did not err in concluding that an
evidentiary hearing was unnecessary to deny the petition.

III. CONCLUSION

{18} We reverse and remand this matter to the district court so that it may vacate one
of Defendant’s CSP convictions on double jeopardy grounds. We deny relief on all other
grounds.

{19} IT IS SO ORDERED.

JULIE J. VARGAS, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

BRIANA H. ZAMORA, Justice