ineffective assistance claim in New Mexico

2026See Roybal, 2002-NMSC-027, ¶ 19 (“[I]f facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition.”).

2025See, e.g., State v. Lewis, 2017-NMCA-056, ¶ 13 , 399 P.3d 954 (observing that although a double jeopardy challenge need not be preserved and may be raised at any time, there must be a factual basis in the record to support the claim); see also State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“When an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.

2025See State v. Crocco, 2014-NMSC-016, ¶ 14 , 327 P.3d 1068 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition.” (internal quotation marks and citation omitted)).

2025“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.” State v. Crocco, 2014-NMSC-016, ¶ 14 , 327 P.3d 1068 (internal quotation marks and citation omitted). {4} Defense counsel’s performance is deficient if his or her conduct falls below that of a reasonably competent attorney.

2023Accordingly, we conclude that Defendant has failed to establish a prima facie case of ineffective assistance of counsel on appeal. {23} Even so, Defendant “is free to pursue habeas corpus proceedings where he may actually develop the record with respect to these issues.” State v. Arrendondo, 2012- NMSC-013, ¶ 44, 278 P.3d 517 ; see also State v. Crocco, 2014-NMSC-016, ¶ 14 , 327 P.3d 1068 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition.” (internal quotation marks and citation omit

2021Notwithstanding this, Defendant “is free to pursue habeas corpus proceedings where he may actually develop the record with respect to these issues.” State v. Arrendondo, 2012-NMSC-013, ¶ 44 , 278 P.3d 517 ; see also State v. Crocco, 2014-NMSC-016, ¶ 14 , 327 P.3d 1068 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]” (internal quotation marks and citation omitted)).

2017“If facts necessary to a full determination are not part of 24 the record, an ineffective assistance claim is more properly brought through a habeas 25 corpus petition, although an appellate court may remand a case for an evidentiary 26 hearing if the defendant makes a prima facie case of ineffective assistance.” Id. 27 “Habeas corpus proceedings are the preferred avenue for adjudicating ineffective 28 assistance of counsel claims, because the record before the trial court may not 29 adequately document the sort of evidence essential to a determination of trial 30 counsel’s effectiveness.” Sta

2017“If facts necessary to a full determination are not part of 24 the record, an ineffective assistance claim is more properly brought through a habeas 25 corpus petition, although an appellate court may remand a case for an evidentiary 26 hearing if the defendant makes a prima facie case of ineffective assistance.” Id. 27 “Habeas corpus proceedings are the preferred avenue for adjudicating ineffective 28 assistance of counsel claims, because the record before the trial court may not 29 adequately document the sort of evidence essential to a determination of trial 30 counsel’s effectiveness.” Sta

2012If facts necessary to a full 11 determination are not part of the record, an ineffective assistance claim is more 12 properly brought through a habeas corpus petition, although an appellate court may 13 remand a case for an evidentiary hearing if the defendant makes a prima facie case of 14 ineffective assistance.” State v. Roybal, 2002-NMSC-027 , ¶ 19, 132 N.M. 657 , 54 15 P.3d 61 (citing State v. Swavola, 114 N.M. 472, 475 , 840 P.2d 1238, 1241 (Ct. App. 16 1992)). 17 Defendant asserts that his counsel was ineffective in a variety of ways. 18 Defendant first claims that his counsel failed to

2012If facts necessary to a full 11 determination are not part of the record, an ineffective assistance claim is more 12 properly brought through a habeas corpus petition, although an appellate court may 13 remand a case for an evidentiary hearing if the defendant makes a prima facie case of 14 ineffective assistance.” State v. Roybal, 2002-NMSC-027 , ¶ 19, 132 N.M. 657 , 54 15 P.3d 61 (citing State v. Swavola, 114 N.M. 472, 475 , 840 P.2d 1238, 1241 (Ct. App. 16 1992)). 17 Defendant asserts that his counsel was ineffective in a variety of ways. 18 Defendant first claims that his counsel failed to

2021Nevertheless, given the nature of Defendant’s claim regarding the legality of the search warrant in this case, this Court has the necessary facts to evaluate the challenged affidavit and determine whether trial counsel’s failure to file a suppression motion arising from the search warrant affidavit “fell below an objective standard of reasonableness.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26 , 130 N.M. 198 , 22 P.3d 666 (internal quotation marks and citation omitted); see State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (considering an ineffective assistance claim on direct appeal,

2021Nevertheless, given the nature of Defendant’s claim regarding the legality of the search warrant in this case, this Court has the necessary facts to evaluate the challenged affidavit and determine whether trial counsel’s failure to file a suppression motion arising from the search warrant affidavit “fell below an objective standard of reasonableness.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26 , 130 N.M. 198 , 22 P.3d 666 (internal quotation marks and citation omitted); see State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (considering an ineffective assistance claim on direct appeal,

2025There is “a preference that ineffective assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct appeal.” State v. Cordova, 2014-NMCA-081 , ¶7, 331 P.3d 980 (citing Duncan v. Kerby, 1993-NMSC-011 , ¶ 4, 115 N.M. 344 , 851 P.2d 466 ); State v. Grogan, 2007-NMSC-039, ¶ 9 , 142 N.M. 107 , 163 P.3d 494 .

2025There is “a preference that ineffective assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct appeal.” State v. Cordova, 2014-NMCA-081 , ¶7, 331 P.3d 980 (citing Duncan v. Kerby, 1993-NMSC-011 , ¶ 4, 115 N.M. 344 , 851 P.2d 466 ); State v. Grogan, 2007-NMSC-039, ¶ 9 , 142 N.M. 107 , 163 P.3d 494 .

2024See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”); accord Lukens v. Franco, 2019-NMSC-002, ¶ 19 , 433 P.3d 288 .

2018State v. Plouse , 2003-NMCA-048 , ¶ 13, 133 N.M. 495 , 64 P.3d 522 (quoting Smith v. Robbins , 528 U.S. 259 , 286 n.14, 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000) ), abrogated on other grounds by State v. Garza, 2009-NMSC-038 , ¶ 48, 146 N.M. 499 , 212 P.3d 387 ; see also Strickland , 466 U.S. at 697 , 104 S.Ct. 2052 ("[T]here is no reason for a court deciding an ineffective assistance claim ... to address both [the deficiency and prejudice] components of the inquiry if the defendant makes an insufficient showing on one."). "[T]he proper standard for evaluating [a] claim that appellate counsel was

2009See State 9 v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to 10 a full determination are not part of the record, an ineffective assistance claim is more 11 properly brought through a habeas corpus petition[.]”); State v. Martinez, 12 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (“This Court has expressed its 13 preference for habeas corpus proceedings over remand when the record on appeal 14 does not establish a prima facie case of ineffective assistance of counsel.”). 15 Defendant also argues that the evidence was not sufficient to convict him of 16 carel

2009See State 9 v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to 10 a full determination are not part of the record, an ineffective assistance claim is more 11 properly brought through a habeas corpus petition[.]”); State v. Martinez, 12 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (“This Court has expressed its 13 preference for habeas corpus proceedings over remand when the record on appeal 14 does not establish a prima facie case of ineffective assistance of counsel.”). 15 Defendant also argues that the evidence was not sufficient to convict him of 16 carel

2019See State v. Powers, 7 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (denying a motion to amend the 8 docketing statement to raise issues of ineffective assistance of counsel where the 9 issues were not viable); State v. Moore, 1989-NMCA-073 , ¶ 42, 109 N.M. 119 , 782 10 P.2d 91 (stating that issues sought to be presented in a motion to amend the docketing 11 statement must be viable), superceded by rule on other grounds as stated in State v. 12 Salgado, 1991-NMCA-044 , 112 N.M. 537 , 817 P.2d 730 ; see also State v. Martinez, 13 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating tha

2019See State v. Powers, 7 1990-NMCA-108 , ¶ 8, 111 N.M. 10 , 800 P.2d 1067 (denying a motion to amend the 8 docketing statement to raise issues of ineffective assistance of counsel where the 9 issues were not viable); State v. Moore, 1989-NMCA-073 , ¶ 42, 109 N.M. 119 , 782 10 P.2d 91 (stating that issues sought to be presented in a motion to amend the docketing 11 statement must be viable), superceded by rule on other grounds as stated in State v. 12 Salgado, 1991-NMCA-044 , 112 N.M. 537 , 817 P.2d 730 ; see also State v. Martinez, 13 1996-NMCA-109 , ¶ 25, 122 N.M. 476 , 927 P.2d 31 (stating tha

2016If facts necessary to a full determination 16 are not part of the record, an ineffective assistance claim is more properly brought 17 through a habeas corpus petition, although an appellate court may remand a case for 18 an evidentiary hearing if the defendant makes a prima facie case of ineffective 19 assistance.” (citation omitted)); see also State v. Aker, 2005-NMCA-063, ¶ 34 , 137 2 1 N.M. 561 , 113 P.3d 384 (“To establish a prima facie case of ineffective assistance of 2 counsel, [a d]efendant must show that (1) counsel’s performance was deficient in that 3 it ‘fell below an objective sta

2016If facts necessary to a full determination 16 are not part of the record, an ineffective assistance claim is more properly brought 17 through a habeas corpus petition, although an appellate court may remand a case for 18 an evidentiary hearing if the defendant makes a prima facie case of ineffective 19 assistance.” (citation omitted)); see also State v. Aker, 2005-NMCA-063, ¶ 34 , 137 2 1 N.M. 561 , 113 P.3d 384 (“To establish a prima facie case of ineffective assistance of 2 counsel, [a d]efendant must show that (1) counsel’s performance was deficient in that 3 it ‘fell below an objective sta

2019See State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]”); see also State v. Herrera, 2001-NMCA-073, ¶ 37 , 131 N.M. 22 , 33 P.3d 22 (“When the record on appeal does not establish a prima facie case of ineffective assistance of counsel, this Court has expressed its preference for resolution of the issue in habeas corpus proceedings over remand for an evidentiary hearing.”).

2019See State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]”); see also State v. Herrera, 2001-NMCA-073, ¶ 37 , 131 N.M. 22 , 33 P.3d 22 (“When the record on appeal does not establish a prima facie case of ineffective assistance of counsel, this Court has expressed its preference for resolution of the issue in habeas corpus proceedings over remand for an evidentiary hearing.”).

2019See State v. Jacobs, 2000-NMSC-026 , ¶ 51, 8 1 129 N.M. 448 , 10 P.3d 127 (stating that failure to prove either prong of the test defeats 2 a claim of ineffective assistance of counsel); State v. Martinez, 2007-NMCA-160 , ¶¶ 3 22-24, 143 N.M. 96 , 173 P.3d 18 (requiring that an ineffective assistance claim be 4 supported by a showing of how counsel’s performance prejudiced the defense). 5 {15} We therefore deny the motion to amend to raise the issue of ineffective 6 assistance of counsel as the issue is not viable on direct appeal.

2019See State v. Jacobs, 2000-NMSC-026 , ¶ 51, 8 1 129 N.M. 448 , 10 P.3d 127 (stating that failure to prove either prong of the test defeats 2 a claim of ineffective assistance of counsel); State v. Martinez, 2007-NMCA-160 , ¶¶ 3 22-24, 143 N.M. 96 , 173 P.3d 18 (requiring that an ineffective assistance claim be 4 supported by a showing of how counsel’s performance prejudiced the defense). 5 {15} We therefore deny the motion to amend to raise the issue of ineffective 6 assistance of counsel as the issue is not viable on direct appeal.

2024See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”); accord Lukens v. Franco, 2019-NMSC-002, ¶ 19 , 433 P.3d 288 .

2020See Lukens v. Franco, 2019- NMSC-002, ¶ 19, 433 P.3d 288 (“There is no reason for a court deciding an ineffective assistance claim to address both the deficiency and prejudice components of the inquiry if the defendant makes an insufficient showing on one.” (omission, alteration, internal quotation marks, and citation omitted)). {29} We note that our decision with respect to Defendant’s ineffective assistance of counsel claim is necessarily based upon the record before this Court.

2021“Because we usually have insufficient information before us to evaluate an ineffective assistance claim on direct appeal, as in this case, [the appellate courts prefer] that these claims be brought under habeas corpus proceedings so that the defendant may actually develop the record with respect to defense counsel’s actions.” State v. Samora, 2013-NMSC-038, ¶ 23 , 307 P.3d 328 (internal quotation marks and citation omitted).

2015State v. 12 Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 ; see also State v. Samora, 13 2013-NMSC-038, ¶ 23 , 307 P.3d 328 (“Because we usually have insufficient 14 information before us to evaluate an ineffective assistance claim on direct appeal, as 15 in this case, this Court prefers that these claims be brought under habeas corpus 16 proceedings so that the defendant may actually develop the record with respect to 17 defense counsel’s actions.” (internal quotation marks and citation omitted)).

2024“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition.” Roybal, 2002-NMSC-027, ¶ 19 ; see Bernal, 2006-NMSC-050, ¶ 33 (stating that in instances where the record on appeal is deficient to determine a claim of ineffective assistance of counsel, it is our Supreme Court’s preference that such claims be brought through habeas corpus proceedings). {6} Defendant’s arguments are premised on two general complaints: (1) Defendant had to tell trial counsel to make objections and cross-examine witn

2009If facts necessary to a full 5 determination are not part of the record, an ineffective assistance claim 6 is more properly brought through a habeas corpus petition, although an 7 appellate court may remand a case for an evidentiary hearing if the 8 defendant makes a prima facie case of ineffective assistance. 9 State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 . 10 To establish a prima facie case of ineffective assistance of counsel, 11 Defendant must show that (1) counsel’s performance was deficient in 12 that it fell below an objective standard of reasonableness; and (2) that

2017See State v. Hester, 1999-NMSC-020, ¶ 9 , 127 N.M. 17 218, 979 P.2d 729 (stating that the rule to prove the ineffective assistance of counsel 18 claim, the defendant must show that “counsel’s performance fell below that of a 19 reasonably competent attorney,” and that “the deficient performance prejudiced the 20 defense” (internal quotation marks and citation omitted)). 21 {25} “When an ineffective assistance claim is first raised on direct appeal, we 22 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19 , 23 132 N.M. 657 , 54 P.3d 61 .

2017See State v. Hester, 1999-NMSC-020, ¶ 9 , 127 N.M. 17 218, 979 P.2d 729 (stating that the rule to prove the ineffective assistance of counsel 18 claim, the defendant must show that “counsel’s performance fell below that of a 19 reasonably competent attorney,” and that “the deficient performance prejudiced the 20 defense” (internal quotation marks and citation omitted)). 21 {25} “When an ineffective assistance claim is first raised on direct appeal, we 22 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19 , 23 132 N.M. 657 , 54 P.3d 61 .

2025See Paredez, 2004-NMSC-036, ¶ 22 ; Tafoya, 2012-NMSC-030, ¶ 59 ; see also Roybal, 2002-NMSC-027, ¶ 19 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus proceeding.”). {6} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm. {7} IT IS SO ORDERED.

2013See State v. Roybal, 2002-NMSC-027 , 17 ¶ 19, 132 N.M. 657 , 54 P.3d 61 ; Paredez, 2004-NMSC-036, ¶ 22 .

2019See State v. Jacobs, 2000-NMSC-026 , ¶ 51, 8 1 129 N.M. 448 , 10 P.3d 127 (stating that failure to prove either prong of the test defeats 2 a claim of ineffective assistance of counsel); State v. Martinez, 2007-NMCA-160 , ¶¶ 3 22-24, 143 N.M. 96 , 173 P.3d 18 (requiring that an ineffective assistance claim be 4 supported by a showing of how counsel’s performance prejudiced the defense). 5 {15} We therefore deny the motion to amend to raise the issue of ineffective 6 assistance of counsel as the issue is not viable on direct appeal.

2019See State v. Jacobs, 2000-NMSC-026 , ¶ 51, 8 1 129 N.M. 448 , 10 P.3d 127 (stating that failure to prove either prong of the test defeats 2 a claim of ineffective assistance of counsel); State v. Martinez, 2007-NMCA-160 , ¶¶ 3 22-24, 143 N.M. 96 , 173 P.3d 18 (requiring that an ineffective assistance claim be 4 supported by a showing of how counsel’s performance prejudiced the defense). 5 {15} We therefore deny the motion to amend to raise the issue of ineffective 6 assistance of counsel as the issue is not viable on direct appeal.

2025“To show deficiency the defendant must demonstrate the defense counsel did not exercise the skill of a reasonably competent attorney.” Lukens v. Franco, 2019-NMSC-002, ¶ 17 , 433 P.3d 288 (internal quotation marks and citation omitted).

2024See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”); accord Lukens v. Franco, 2019-NMSC-002, ¶ 19 , 433 P.3d 288 .

2024Defendant Has Not Established Prejudice for His Third, Fourth, and Fifth Claims {15} Defendant’s arguments regarding his remaining claims fail to satisfy the basic test for the second prong of an ineffective assistance claim: “A defense is prejudiced if, as a result of the deficient performance, there was a reasonable probability that the result of the trial would have been different.” Dylan J., 2009-NMCA-027, ¶ 38 (text only) (citation omitted). {16} In support of his third claim, Defendant argues that because his counsel failed to object to comments made during the State’s closing argument,

2019“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance.” Id. {37} “A defendant makes a prima facie case of ineffective assistance despite full and adequate factual support in the record by showing that defense counsel's performance fell below the standard of a reasonably competent attorney and, due to the deficient performance, the defense was preju

2022But cf. Favela, 2015-NMSC-005, ¶¶ 5, 10 (concluding that the first prong of the defendant’s ineffective assistance claim was established because the district court had found—after accepting as true the allegations in the defendant’s motion to withdraw plea and hearing testimony from the defendant—that defense counsel had not explained the immigration consequences of the plea agreement to the defendant). {12} Defendant’s testimony was inconsistent and contradictory.

2018See State v. Favela, 4 1 2015-NMSC-005, ¶ 12 , 343 P.3d 178 (indicating that even where categorically 2 unreasonable conduct is established, it remains incumbent upon the defendant to prove 3 that he was prejudiced by counsel’s deficient performance); State v. Duran, 4 1988-NMSC-082 , ¶ 12, 107 N.M. 603 , 762 P.2d 890 (“[T]o establish a due process 5 violation, and thus reversible error, the defendant must demonstrate prejudice.”), 6 superseded by rule as stated in State v. Gutierrez, 1998-NMCA-172 , 126 N.M. 366 , 7 969 P.2d 970 .

2019See State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]”). {7} Lastly, Defendant continues to assert that the evidence was insufficient to prove that he was involved in any of the crimes for which he was convicted. [DS PDF 4; MIO 23-24] Defendant asserts that the essence of the State’s case was that a group of people, ostensibly three individuals, entered a cannabis dispensary without authorization, and held the facil

2019See State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]”). {7} Lastly, Defendant continues to assert that the evidence was insufficient to prove that he was involved in any of the crimes for which he was convicted. [DS PDF 4; MIO 23-24] Defendant asserts that the essence of the State’s case was that a group of people, ostensibly three individuals, entered a cannabis dispensary without authorization, and held the facil