IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-021

Filing Date: August 27, 2020

No. S-1-SC-37526

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

CURTIS WORLEY,

Defendant-Respondent.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jane Shuler-Gray, District Judge

Released for Publication December 22, 2020.

Hector H. Balderas, Attorney General

Martha Anne Kelly, Assistant Attorney General

Santa Fe, NM

for Petitioner

Duncan Earnest, LLC

Theresa M. Duncan

Albuquerque, NM

for Respondent

OPINION

THOMSON, Justice.

The district court granted Defendant Curtis Worley’s petition for a writ of habeas 

corpus without providing a basis for granting relief. The State appealed. See Rule 5-

802(N)(1) NMRA (giving the state the right to appeal an order granting a writ of habeas 

corpus when a death sentence has not been imposed); see also Rule 12-102(A)(3) 

NMRA (requiring that “appeals from the granting of writs of habeas corpus” be taken to 

this Court).
Defendant argues that the district court order granting the writ of habeas corpus 

was proper because (1) Defendant was actually innocent and new evidence in the form 

of recanted testimony, DNA evidence, and an allegedly suppressed statement 

undermines confidence in the verdict, and also because (2) the allegedly suppressed 

statement violated Defendant’s due process rights pursuant to Brady v. Maryland, 373 

U.S. 83 (1963), undermining the fundamental fairness of the trial. Based on the analysis 

that follows, we disagree and reverse the district court order that granted the writ and a 

new trial.

I. BACKGROUND

Nancy Mitchell’s decomposing body was discovered on January 30, 1982, near 

the Pecos River in Eddy County, New Mexico. See State v. Worley, 1984-NMSC-013, ¶ 

4, 100 N.M. 720, 676 P.2d 247 (citing State v. Case (Case I), 1984-NMSC-012, ¶ 4, 100 

N.M. 714, 676 P.2d 241). The State charged Defendant with the murder and criminal 

sexual penetration of Mitchell and prosecuted Defendant based on testimony from 

multiple witnesses that he was one of a group of men that attacked and raped Mitchell 

on January 1, 1982. The jury convicted Defendant of first-degree felony murder, NMSA 

1978, § 30-2-1(A) (1980), and first-degree criminal sexual penetration, NMSA 1978, § 

30-9-11(A) (1975), and the district court sentenced him for both crimes to imprisonment 

for life plus eighteen years, see NMSA 1978, § 31-18-14(A) (1979); NMSA 1978, § 31-

18-15(A)(1) (1981). This Court affirmed Defendant’s convictions on direct appeal. 

Worley, 1984-NMSC-013, ¶¶ 1-2.

Defendant petitioned the Eddy County District Court in 2004 for a writ of habeas 

corpus. The petition alleged that “two of the three purported eyewitnesses to the alleged 

crime . . . disclose[d] for the first time to the defense that they fabricated their

testimony,” and Defendant asserted that he was entitled to relief based on these “newly 

discovered recantations.”

Co-defendant Carl Case was convicted of the murder and criminal sexual 

penetration of Mitchell in a separate proceeding. Case I, 1984-NMSC-012, ¶¶ 1, 4; see

Worley, 1984-NMSC-013, ¶¶ 1, 9. This Court affirmed Case’s convictions on direct 

appeal, see Case I, 1984-NMSC-012, ¶¶ 2, 28, and Case also filed a petition for writ of 

habeas corpus in the Eddy County District Court, Case v. Hatch (Case II), 2008-NMSC024, ¶¶ 1-4, 144 N.M. 20, 183 P.3d 905. In the habeas petition, Case argued that he 

was entitled to relief based on “newly discovered” recanted testimony and a 1982 

statement by Bobby Autry that Case asserted was not disclosed in violation of Brady.

1

1Defendant’s answer brief in this appeal explains that investigators in Case’s habeas proceedings 

discovered a statement that Autry made to law enforcement on February 3, 1982, which the prosecution 

had possessed and failed to disclose to Case’s trial counsel. Defendant maintains that this statement was 

favorable to his defense and that the prosecution failed to disclose the statement to his trial attorney as 

well. Defendant’s answer brief also discusses “new” DNA results favorable to his case, obtained from 

tests performed in 2005, during Case’s habeas proceedings, on physical evidence obtained from 

Mitchell’s body and clothing in 1982.
Case II, 2008-NMSC-024, ¶¶ 1-4, 44, 48. After holding evidentiary hearings in 2005 and 

2006, the district court denied Case’s habeas petition. Id. ¶ 4.

In late 2007, before the district court held an evidentiary hearing on Defendant’s 

habeas petition, Defendant agreed to stay the proceedings pending the outcome of 

Case’s appeal of the denial of his habeas petition because of “the overlap of both 

factual and legal issues between that case and this one.” In April 2008, this Court 

affirmed the denial of Case’s petition for a writ of habeas corpus. Id. Case filed a petition 

for a writ of habeas corpus in the United States District Court approximately two months 

later.

On September 2, 2008, Defendant filed a supplemental petition and 

memorandum in support of his previously stayed habeas petition, adding to his own 

case as additional grounds both the alleged suppression of the Autry statement and the 

allegedly new DNA evidence that Case had asserted as grounds for relief. Ultimately, 

the district court did not consider the merits of Defendant’s petition until after the 

resolution of Case’s federal habeas petition. See Case v. Hatch (Case III), 773 F. 

Supp. 2d 1070, 1071, 1149 (D.N.M. 2011) (conditionally granting habeas relief), 

vacated by Case v. Hatch (Case IV), 731 F.3d 1015, 1019, 1044 (10th Cir. 2013) 

(vacating the conditionally granted habeas relief).

The Tenth Circuit denied Case federal habeas relief, holding that the alleged 

Brady evidence failed to meet “the Brady materiality standard” and therefore the federal 

district court did not have jurisdiction to reach the merits. Case IV, 731 F.3d at 1042-44. 

The Tenth Circuit described the DNA evidence as “inconclusive” and agreed with the 

analysis of this Court in Case II that the recanted testimony did no more than “revert to 

the original statements [those witnesses] gave to the police.” Id. at 1043-44; see Case 

II, 2008-NMSC-024, ¶ 39.

Defendant relied on transcripts from the evidentiary hearings conducted for Case 

II and Case III rather than calling the recanting witnesses Audrey Knight and Paul 

Dunlap to testify in this matter. Additional relevant testimony from the evidentiary 

hearings on Case’s state habeas petition conducted for Case II concerned the result 

and effect of both the DNA evidence and the alleged failure to disclose the February 3, 

1982, statement to Case’s attorney. Defendant simply “incorporated the evidence 

presented during the Carl Case hearings [conducted for Case II] as well as the 

Supreme Court’s [opinion] in [Case II]” and “supplemented the record with additional 

exhibits, including, inter alia, additional transcripts from the Carl Case federal 

proceedings, judicial opinions from those proceedings [Case III and Case IV], and a 

videotaped deposition of [Defendant].” Defendant argued, “[T]he real issue for this court 

is how [Defendant’s] trial was different from Carl Case. If this was exactly the same trial 

then you’d be governed by the different opinions, but it’s not, and that, from our 

perspective, is legally significant.”

The district court summarily granted Defendant’s habeas petition, and the State 

appealed.
II. ANALYSIS

Defendant argues that the district court properly granted a new trial because he 

is actually innocent and because no reasonable juror, considering what he asserts is 

new evidence, would have convicted him. Alternatively, Defendant argues that the State 

did not provide his defense counsel with a statement Autry made to law enforcement on 

February 3, 1982, which Defendant asserts constitutes a Brady violation and 

undermines the fundamental fairness of the trial. We first review Defendant’s allegation 

of a Brady violation based on Autry’s February 3, 1982, statement and then examine 

Defendant’s actual innocence claim.

A. Standard of Review

“When reviewing the propriety of a lower court’s grant or denial of a writ of 

habeas corpus, the trial court’s findings of fact concerning the habeas petition are 

reviewed to determine if substantial evidence supports the [trial] court’s findings.” 

Dominguez v. State, 2015-NMSC-014, ¶ 9, 348 P.3d 183 (alteration in original) (internal 

quotation marks and citation omitted). However, “[q]uestions of law or questions of 

mixed fact and law . . . are reviewed de novo.” Id. (omission in original) (internal 

quotation marks and citation omitted).

Although this Court will give deference to the district court in its role as “factfinder” when the district court is a “first-hand observer,” this Court must nonetheless 

perform its “sanctioned role as arbiter of the law.” Duncan v. Kerby, 1993-NMSC-011, ¶ 

7, 115 N.M. 344, 851 P.2d 466. A decision that is ordinarily discretionary but is 

“premised on a misapprehension of law” may be categorized as an abuse of discretion. 

N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 

P.2d 450 (internal quotation marks and citation omitted); see also State v. Torres, 1999-

NMSC-010, ¶ 28, 127 N.M. 20, 976 P.2d 20 (observing that the threshold question, 

whether the lower court applied the correct law to the facts, is reviewed de novo). This 

approach provides deference to the fact-finder as first-hand observer while ensuring 

that we perform our ultimate role, assuring proper application of the law. Duncan, 1993-

NMSC-022, ¶ 7.

B. Alleged Brady Violation

Defendant alleges that the prosecution failed to turn over an audio recording or 

transcript of Autry’s February 3, 1982, statement to law enforcement and that the failure 

violated Defendant’s constitutional right to due process. See Brady, 373 U.S. at 87 

(holding that “the suppression by the prosecution of evidence favorable to an accused 

upon request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution”); accord Case 

II, 2008-NMSC-024, ¶ 44.

1. Legal test and standard of review
A district court’s conclusion that a Brady violation occurred is a legal 

determination of whether the prosecution violated the requirements of due process. See 

Smith v. Cain, 565 U.S. 73, 75 (2012) (“Under Brady, the State violates a defendant’s 

right to due process if it withholds evidence that is favorable to the defense and material 

to the defendant’s guilt or punishment.”); see also Cone v. Bell, 556 U.S. 449, 469 

(2009) (observing that when the prosecution violates Brady it violates due process of 

law pursuant to the Fourteenth Amendment).

“Claims involving the denial of procedural due process are legal questions that 

[this Court] review[s] de novo.” Miller v. Tafoya, 2003-NMSC-025, ¶ 9, 134 N.M. 335, 76 

P.3d 1092; see Fry v. Lopez, 2019-NMSC-013, ¶ 12, 447 P.3d 1086 (observing that this 

Court reviews constitutional challenges to convictions de novo).2

Meeting the following three requirements establishes a Brady violation:

The evidence at issue must be favorable to the accused, either because it 

is exculpatory, or because it is impeaching; that evidence must have been 

suppressed by the State, either willfully or inadvertently; and prejudice 

must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). We first analyze whether the February 

3, 1982, statement was suppressed, then establish whether it was favorable to 

Defendant, and finally determine whether it was material (that is, whether suppression 

resulted in prejudice).

2. For purposes of this habeas proceeding we presume the evidence was 

suppressed

Under Brady and subsequent federal law, “the individual prosecutor has a duty to 

learn of any favorable[-to-the-defendant] evidence known to the others acting on the 

government’s behalf in th[e] case, including the police.” Strickler, 527 U.S. at 281 

(internal quotation marks and citation omitted). Although “police investigators 

sometimes fail to inform a prosecutor of all they know[,] . . . procedures and regulations 

can be established to carry [the prosecutor’s] burden and to insure communication of all 

relevant information on each case to every lawyer who deals with it.” Kyles v. Whitley, 

514 U.S. 419, 438 (1995) (second alteration in original) (internal quotation marks and 

citation omitted). Therefore, even if the evidence at issue was not disclosed because it 

was overlooked, we presume it was suppressed. See Giglio v. United States, 405 U.S. 

150, 154 (1972) (“[W]hether the nondisclosure was a result of negligence or design, it is 

the responsibility of the prosecutor.”); accord Case II, 2008-NMSC-024, ¶ 45 (“[I]t is 

2The federal district court suggested that this Court improperly applied a deferential abuse-of-discretion 

standard in determining there was no Brady violation in Carl Case’s state habeas proceeding. See Case 

III, 773 F. Supp. 2d at 1135-36. Although Case II states, “An alleged Brady violation is a charge of 

prosecutorial misconduct [that] is reviewed for abuse of discretion,” 2008-NMSC-024, ¶ 47, it appears to 

defer only to the trial court’s factual determinations while reviewing legal questions de novo, id. ¶ 55 

(holding that the suppressed Autry statement was not material and that the trial court did not abuse its 

discretion by denying habeas relief).
irrelevant whether the prosecutor failed to disclose evidence either intentionally or 

negligently.”).

Defendant’s attorney Charles A. Feezer was deceased by the time Defendant 

filed his habeas petition in 2004. Defendant argues that “[a]lthough [his] trial counsel, 

Charles Feezer, is deceased and thus unable to testify, the transcript of the trial 

establishes that Feezer was also unaware” of the February 3, 1982, Autry statement.

Our review of the trial transcript determines that, during cross-examination of 

Autry, Feezer enumerated by date two of four recorded statements that Autry made to 

law enforcement in 1982 and made no mention of the February 3, 1982, statement. We 

observe that the prosecutor in redirect examination of Autry also omitted the February 3, 

1982, statement in enumerating by date three of the four recorded statements Autry 

made to law enforcement in 1982 for Autry to confirm.3

This Court in Case II ostensibly presumed suppression by proceeding further 

with the Brady analysis after stating, “Ultimately, we are not left with a clear answer 

about whether the taped statement was suppressed by the prosecution.” 2008-NMSC024, ¶ 49. Although the evidence presented in Case II supported a presumption that the 

February 3, 1982, statement was suppressed in that case and thus suggests that the 

evidence was also suppressed in this case, it does not establish that the prosecution did 

not disclose the evidence to Feezer.

Remaining mindful of this uncertainty and considering that the purpose of Brady

is to reinforce the integrity of the judicial system, we presume without deciding that the 

statement was suppressed in this case. Cf. United States v. Cooper, 654 F.3d 1104, 

1119 (10th Cir. 2011) (“Under Brady, the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good faith or bad faith of the 

prosecution.” (internal quotation marks and citation omitted)).

3. The evidence was favorable to Defendant

Evidence is “favorable to an accused” if its disclosure and effective use “may 

make the difference between conviction and acquittal” regardless of whether such 

evidence is impeachment evidence or exculpatory evidence. United States v. Bagley, 

473 U.S. 667, 676 (1985) (internal quotation marks and citation omitted).

In his February 3, 1982, statement, Autry admitted that he had lied to officers 

about having intercourse with Mitchell because “I didn’t know if she was raped at the 

time or what, and I didn’t want nobody to point the finger at me cause I didn’t do it.” 

Autry told officers about a sexual encounter with Mitchell in Autry’s car, ostensibly in 

December of 1981:

3“Well, we have got several of them. You gave one on January the 30th, March the 5th and March the 

12th, is that right?”
I just – I just – we laid there foolin’ around, kissin’ and stuff, and I was 

playing with her breasts, and then she just – I – I tried to – I got fixed up 

about half way in, and she said no, she pushed back, and I said alright. 

Then she said let’s go on out to that party and I said well, let’s go. Got 

dressed up and we both crawled back in the front seat of my car and we 

went out to the – we went by and got Mike and we went out to the party.

When asked by officers if he was mad at Mitchell, Autry responded, “No. I got – I got 

mad, yeah, but not, not that mad. I said well hell, ain’t no great big loss to get turned 

down by a girl.”

When defense counsel attempted to cross-examine Autry about his relationship 

with Mitchell at trial, Autry admitted that he made a sexual advance toward her but 

stated that he did not remember when it had occurred.

The jury weighed each witness’s credibility to determine the facts of the case. If 

defense counsel had use of the February 3, 1982, statement to more effectively 

impeach Autry, it could have affected the jury’s assessment of Autry’s credibility, but this 

hypothetical difference between possible cross-examinations of Autry is one of degrees. 

Defense counsel did test Autry’s credibility concerning his relationship with Mitchell. 

Further, other evidence at trial corroborated Autry’s testimony concerning the gang rape 

and murder of Mitchell on January 1, 1982. Autry’s statement does not make a clear 

difference between conviction and acquittal, but because it could have affected the 

jury’s assessment of Autry’s credibility, the February 3, 1982, statement is favorable. 

See Case II, 2008-NMSC-024, ¶¶ 50, 53 (determining that Autry’s February 3, 1982, 

statement “has some impeachment value” and is therefore favorable evidence). We 

now turn to the question of whether the statement was material.

4. The statement was not material

A “real” Brady violation requires “nondisclosure . . . so serious that there is a 

reasonable probability that the suppressed evidence would have produced a different 

verdict.” Strickler, 527 U.S. at 281. The crux of the Brady analysis “is not whether the 

defendant would more likely than not have received a different verdict with the 

evidence, but whether in its absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence.” Id. at 289-90 (internal quotation marks and 

citation omitted). Concerning whether the suppressed evidence was material to the 

verdict, this Court has stated, “Materiality only exists if the suppressed evidence 

‘creates a reasonable doubt that did not otherwise exist.’” Case II, 2008-NMSC-024, ¶ 

54 (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)).

“To make the materiality determination, we view the suppressed evidence’s 

significance in relation to the record as a whole.” Cooper, 654 F.3d at 1120 (10th Cir. 

2011) (internal quotation marks and citation omitted); accord Case II, 2008-NMSC-024, 

¶ 53 (“Evaluating materiality under Brady requires us to look at the entire trial to 

determine whether the defendant’s conviction was obtained by violating due process, 

whether his or her trial was tainted with fundamental unfairness because certain 
evidence was not disclosed to the defense.” (internal quotation marks and citation 

omitted)). The suppressed evidence is considered material only if it “could reasonably 

be taken to put the whole case in such a different light as to undermine confidence in 

the verdict.” Strickler, 527 U.S. at 290 (internal quotation marks and citation omitted). A 

new trial is not automatically required “whenever ‘a combing of the prosecutors’ files 

after the trial has disclosed evidence possibly useful to the defense but not likely to 

have changed the verdict. . . .’” Case II, 2008-NMSC-024, ¶ 54 (quoting Giglio, 405 U.S. 

at 154).

Defendant argues that the February 3, 1982, statement was material because 

not having the statement affected his ability to suggest and argue (1) that Autry 

fabricated his testimony and (2) that Autry had a motive to kill Mitchell based on her 

rejection of him. Defendant argues that his impeachment of Autry was less effective 

than it could have been. Even presuming that Defendant’s impeachment of Autry would 

have been more effective, the absence of the February 3, 1982, statement does not 

undermine confidence in the verdict within the context of the entire trial.

Autry was cross-examined on his prior inconsistent statements, the facts that he 

failed a polygraph test and had “told a lot of lies,” which Autry admitted. The February 3, 

1982, statement was cumulative evidence that Autry did not always tell the truth or the 

whole truth. “[W]here the credibility of a witness has already been substantially called 

into question in the same respects by other evidence, additional impeachment evidence 

will generally be immaterial and will not provide the basis for a Brady claim.” Cooper, 

654 F.3d at 1120 (internal quotation marks and citation omitted). “Where evidence 

‘insignificantly impact[s] the degree of impeachment,’ it generally will ‘not be sufficient to 

meet the . . . materiality standard.’” Id. at 1120 (alteration and omission in original) 

(quoting Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009)); accord Case IV, 

731 F.3d at 1041-42; Case II, 2008-NMSC-024, ¶ 54.

Defendant argues that the suppression of the statement is more material in his 

case than in Case’s habeas matter because “[a]lthough the tape would not have 

changed Curtis’s defense, it undeniably would have strengthened it.” As support, 

Defendant relies on his alibi and his own testimony that Mitchell “was scared that Bobby 

Autry was going to come back up there and bother her,” and that the last time he saw 

Mitchell she was with Autry on December 20, 1981. Further, Defendant asserts the 

February 3, 1982, statement had “unique impeachment value” because although at 

Defendant’s trial Autry admitted making sexual advances, he “denied having an intimate 

relationship with” Mitchell.

Defendant’s argument that in December 1981, Autry had a motive to kill Mitchell 

minimizes his alternative theory that Mitchell was still alive in mid-January. Defense 

witnesses testified that they saw Mitchell alive on January 6, or January 16, 1982, days 

after she was sexually assaulted and murdered. Although the jury evidently discredited 

that theory, it undercut Defendant’s own speculative theory that Autry could have killed 

Mitchell around December 20, 1981.
Defendant’s argument that the February 3, 1982, statement is material 

exculpatory evidence also fails because “evidence that another person had a motive to 

commit the crime for which a defendant is on trial is generally inadmissible, absent 

direct or circumstantial evidence linking the third person to the crime.” Case II, 2008-

NMSC-024, ¶ 55; see State v. Rosales, 2004-NMSC-022, ¶ 10, 136 N.M. 25, 94 P.3d 

768 (discussing the direct-evidence requirement in other jurisdictions for consideration 

of third-person motive evidence). “For Brady purposes, exculpatory evidence cannot be 

purely speculative.” Case II, 2008-NMSC-024, ¶ 55; accord Case IV, 731 F.3d at 1041 

(quoting United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994) (“‘The mere 

possibility that evidence is exculpatory does not satisfy the constitutional materiality 

standard.’”)). Although Defendant argues that Autry had a motive to kill Mitchell based 

on Autry’s February 3, 1982, statement, it does not appear that the statement would 

have been admissible, let alone materially exculpatory, based on the record.

The jury convicted Defendant primarily on the basis of testimony from multiple 

eyewitnesses whose stories reinforced each other despite that they did not perfectly 

match. Defendant now challenges the credibility of some trial witnesses, insinuating that 

they lied and questioning their motives for testifying. But Autry’s February 3, 1982, 

statement is cumulative and speculative in light of all the evidence presented at trial. 

See Case II, 2008-NMSC-024, ¶¶ 54-55. Further, the jury appears to have disregarded 

the credibility (1) of testimony concerning Defendant’s alibi defense, (2) of testimony 

that Mitchell was alive after January 1, and (3) of Defendant, in testifying on his own 

behalf.

When viewed in context, we decline to conclude that justice has not been done 

or that there is a reasonable probability that the February 3, 1982, statement, if it had 

been produced and effectively used by defense counsel, would have delivered a 

different verdict. Thus, there was no Brady violation. See Strickler, 527 U.S. at 281. We 

now turn to Defendant’s claim of actual innocence.

C. Defendant’s Actual Innocence Claim Is Not Supported by New Evidence

Evidence used in a habeas proceeding to support a claim for actual innocence 

must be new evidence. Montoya v. Ulibarri, 2007-NMSC-035, ¶ 30, 142 N.M. 89, 163 

P.3d 476 (“[A habeas] petitioner asserting a freestanding claim of innocence must 

convince the court by clear and convincing evidence that no reasonable juror would 

have convicted him in light of the new evidence.”). Defendant argues that the new 

evidence includes the recanted testimony, the DNA evidence, and the nondisclosed 

statement from the State’s eyewitness Autry who testified at trial.

1. The recanted testimony is not new evidence

“[A] petitioner seeking a new trial through a writ of habeas corpus because of 

recanted testimony must prove, based upon the entire record, including the original trial 

proceedings at issue, that the recantation is credible and was significant to the original 

verdict.” Case II, 2008-NMSC-024, ¶ 17.
To determine that the recantation is credible, the district court must analyze the 

following factors, “none of which is dispositive” on its own:

(1) [T]he original verdict was based upon uncorroborated testimony; (2) 

the recantation is corroborated by additional new evidence; (3) the 

recantation occurred under circumstances free from suspicion of undue 

influence or pressure from any source; (4) the record fails to disclose any 

possibility of collusion between the defendant and the witness between 

the time of the trial and the retraction; and (5) the witness admitted the 

perjury on the witness stand and thereby subjected himself or herself to 

prosecution.

Id. In addition to these factors, the district court must also weigh the credibility of the 

witness. Id.

To determine that the recantation is significant, the district court must conclude 

that the testimony meets all of following requirements:

(1) [The testimony] must have been discovered since the trial; (2) it could 

not have been discovered before the trial by the exercise of due diligence; 

(3) it must be material; (4) it must not be merely cumulative; (5) it must not 

be merely impeaching or contradictory; and (6) the court is left with a firm 

belief that but for the perjured testimony, the defendant would most likely 

not have been convicted.

Id. ¶ 17 (“With the exception of the firm belief standard which we announce today, the 

remaining factors are already a part of New Mexico habeas corpus jurisprudence.” 

(internal quotation marks and citation omitted)).

Whether a recantation is significant is a mixed question of fact and law because 

the ultimate determination of significance is based on interim determinations, some of 

which are legal. For example, whether the recantation is material is a legal 

determination. See State v. Carabajal, 1920-NMSC-086, ¶ 8, 26 N.M. 384, 193 P. 406 

(holding that a trial court’s statement concerning the materiality of testimony 

subsequently contradicted by current statements of the same witness was not a 

“comment upon the weight of the evidence,” but instead “it was a statement of a legal 

objection to the evidence”). As this Court previously acknowledged, we give deference 

to the district court’s role as “fact-finder” when it is a “first-hand observer” while we 

perform our “sanctioned role as arbiter of the law.” Duncan, 1993-NMSC-011, ¶ 7; see

New Mexico Right to Choose/NARAL, 1999-NMSC-028, ¶ 7 (characterizing a 

discretionary decision “premised on a misapprehension of law” as an abuse of 

discretion). In habeas appeals, a mixed question of fact and law is subject to de novo 

review. Miller, 2003-NMSC-025, ¶ 9.

The district court necessarily relied on transcripts of evidentiary hearings in 

Case’s state and federal habeas proceedings to grant habeas relief, but did not provide 

any findings related to the credibility or significance of the recantations. This is 
problematic in part because the district court could not perform its function as a firsthand observer to evaluate the credibility of the recanting witnesses.

We presume the district court deferred to the first-hand observations of the 

respective courts that heard the testimony in Case’s state and federal habeas 

proceedings. The state district court ostensibly did not analyze credibility “because a 

finding that the recantations were not newly-discovered evidence is dispositive.” Case II, 

2008-NMSC-024, ¶ 34 (“[A] negative finding of any of the six factors under the 

significance prong is dispositive.”). The federal district court determined that both Knight 

and Dunlap were credible after that court held a hearing that was specifically limited as 

to the witnesses’ credibility. See Case III, 733 F. Supp. 2d at 1111.

The credibility of the witness is however only one of the factors that a court must 

consider to determine whether the recantation is credible. See Case II, 2008-NMSC024, ¶ 17 (establishing that five factors must be considered in addition to the credibility 

of the witness). Because our determination that the recantations are not significant is 

dispositive, we do not review the credibility prong of the analysis here. See id. ¶ 34. 

Nonetheless, “rather than presuming the credibility of the recantations,” we strongly 

urge trial courts to “make findings with respect to each factor . . . before addressing the 

significance prong,” id., to facilitate our review and to minimize the issues for review in 

each case.

Concerning the significance prong, a defendant must prove that the recanted 

statements were “qualitatively different” from prior statements and testimony to 

constitute new evidence. Id. ¶ 35. Defendant urges this Court to overrule our prior 

determination that Knight’s and Dunlap’s recantations were an effort “to revert to the 

original statements they gave to the police that they did not know anything about the 

events leading to Mitchell’s death” and that “[t]he recantations were also cumulative.” Id.

¶¶ 39-40. Defendant suggests that we should treat the recantations of Knight and 

Dunlap as new evidence because these witnesses now swear that their trial testimony 

was a lie, despite having sworn at trial that their inconsistent trial testimony was true.

On cross-examination, Knight was questioned and she answered:

Q. [ ] Do you remember . . . giving those answers on this statement of 

yours on the 14th of March?

A. No, I don’t.

Q. Well, were you lying, then, or were you telling the truth?

A. I don’t remember.

. . . .

Q. Counsel labors with you about your lies and says that there were 

42 and 16 pages of statements, essentially all lies, is that right?
A. No.

Q. A lot of them lies?

A. I don’t know I haven’t read them. I don’t remember them.

On cross-examination, Dunlap was questioned and he answered:

Q. And you stayed in jail and said nothing for several months?

A. Yes, sir.

Q. Until finally you had enough and you decided to change your story?

A. Yes, sir.

Q. Okay. So, on September the 2nd you finally decided to change your 

story after they offered you the immunity?

A. Yes, sir.

Q. Because prior to that time you had told them what you are saying 

now were a bunch of lies?

A. Yes, sir.

. . . .

Q. All right. Now, when you gave the statement on 3-10-82, before the 

polygraph, were you telling the truth or were you lying?

A. I was lying and telling the truth, too.

Q. A little of each?

A. Yes, sir.

The fact that Defendant continues to assert he is innocent does not alter the 

nature of the recantations, which are merely contradictory and impeaching because at 

trial, while giving the inconsistent testimony that they now recant, Knight and Dunlap 

admitted that they previously lied to the police. Knight’s and Dunlap’s recantations do 

not appear to be qualitatively different from their original statements, and instead the 

recantations go to the question of the weight of their testimony concerning conflicting 

statements they previously made.
Further, other testimony corroborated the facts supporting Defendant’s 

conviction. This other testimony has not been recanted.

Jimmy Ray Hood testified, without recanting, that regardless of the photographs 

of Defendant at a New Year’s Eve gathering in Loving, New Mexico, Hood saw 

Defendant at the Carlsbad area party location on New Year’s Eve, December 31, 1981, 

which undermined Defendant’s alibi.

Autry testified that he and Defendant, Case, Mike Tweedy, Dunlap, and Joe 

Brown were with Mitchell immediately prior to the sexual assault on the following day 

but that he got scared and took off toward his house about a mile away when the other 

five commenced the sexual assault of Mitchell. Autry never recanted his testimony, 

which the jury ostensibly credited.

Randy Davis testified that he overheard Defendant tell Tweedy “he wanted 

something” as payment for everything he was doing for Mitchell and that Defendant 

thereafter admitted having had sexual intercourse with Mitchell. But contrary to what he 

originally told law enforcement, Davis denied on cross-examination that he had asked to 

be part of the sexual assault and that Defendant and Tweedy would not let him.

Knight’s and Dunlap’s recantations do not differ qualitatively from their original 

declarations that they did not know anything about the assault and murder of Mitchell. 

Therefore, the recantations are simply indicators of the credibility of these statements 

and of the witnesses themselves. See Case II, 2008-NMSC-024, ¶ 17. The jury 

assessed the credibility of the statements at Defendant’s 1983 trial. If the district court 

granted habeas relief based on Knight’s and Dunlap’s recantations, then the district 

court impermissibly reweighed the evidence. See State v. Garcia, 2011-NMSC-003, ¶ 5, 

149 N.M. 185, 246 P.3d 1057 (observing that “appellate courts will not invade the jury’s 

province as fact-finder by second-guess[ing] the jury’s decision concerning the 

credibility of witnesses, reweigh[ing] the evidence, or substitut[ing] its judgment for that 

of the jury.” (alterations in original) (internal quotation marks and citation omitted)). The 

recantations are not new evidence.

2. The February 3, 1982, statement and the DNA results are not new evidence

The DNA evidence and the February 3, 1982, statement are subject to a slightly 

different standard than the significance standard for recanted testimony. The standard 

for newly discovered evidence requires the evidence to fulfill all of the following 

requirements:

“1) [The evidence] will probably change the result if a new trial is granted; 

2) it must have been discovered since the trial; 3) it could not have been 

discovered before the trial by the exercise of due diligence; 4) it must be 

material; 5) it must not be merely cumulative; and 6) it must not be merely 

impeaching or contradictory.”

State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659, 125 P.3d 638 (citation omitted).
We reiterate that although this Court generally defers to a district court’s ultimate 

determination concerning the grant or denial of habeas relief, like our determination of 

the significance of recantations, our determination of new evidence also considers 

mixed questions such as materiality for which we review the application of law to the 

facts de novo. See Carabajal, 1920-NMSC-086, ¶ 8; see also Miller, 2003-NMSC-025, ¶ 

9.

As we concluded in the Brady analysis, the February 3, 1982, statement is not 

material and is cumulative and merely impeaching or contradictory. Therefore, the 

February 3, 1982, statement fails to fulfill all the requirements for new evidence.

The new DNA test evidence4 also fails to fulfill all the requirements for new 

evidence. At trial, the jury convicted Defendant of criminal sexual penetration despite 

expert testimony that the testing of samples taken from in or on Mitchell’s body revealed 

no sperm cells (“no evidence of sexual intercourse”) in any samples. Because criminal 

sexual penetration could have been accomplished “with any object” and did not require 

“emission,” see § 30-9-11(1975), the lack of sperm (male DNA) evidence may be 

relevant, but evidence of its absence is not conclusive. Although the sensitivity of the 

more recent DNA testing is likely an improvement over the testing performed for the 

original trial, the new DNA test result is qualitatively the same type of evidence—the 

absence of male DNA evidence. The unavailability of DNA testing in 1982 does not 

make the more recent test result new evidence.

The jury verdicts indicate that Knight’s and Dunlap’s trial testimony was credible, 

that Autry’s trial testimony was credible, and that the absence of male ejaculate did not 

create reasonable doubt. Based on our analysis here, the recantations, the February 3, 

1982, statement, and the cumulative evidence of absent male DNA do not meet the 

standard of clear and convincing evidence on which no reasonable juror would have 

convicted Defendant. If the district court granted habeas relief based on Defendant’s 

argument that new evidence supported his claim of actual innocence, then the district 

court abused its discretion by misapplying the law.

III. CONCLUSION

Based on the foregoing, we reverse the district court order granting Defendant 

the writ of habeas corpus and a new trial.

IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

4Defendant’s 2008 petition for a writ of habeas corpus describes the “new” DNA result from more 

“sophisticated” testing of 1982 samples taken from Mitchell’s body and clothing as showing the “absence 

of male DNA.”
MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

JUDITH K. NAKAMURA, Justice (specially concurring)

NAKAMURA, Justice (special concurrence).

I concur in the result reached by my colleagues. Respectfully, I am compelled to 

write separately, to 1) explain the impact of the district court’s failure to enter findings of 

fact and conclusions of law; 2) accurately set forth the standard of review, particularly 

for habeas claims based on alleged newly discovered evidence; 3) clarify the law 

regarding Brady claims; and 4) discuss Defendant’s actual innocence claim—an 

independent claim requiring a distinct analysis.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW IN HABEAS 

PROCEEDINGS

The first issue is our approach to the factual record in this case. Generally, in 

habeas appeals, we review the district court’s findings for an abuse of discretion—

meaning, we ask whether substantial evidence supports the findings. Miller, 2003-

NMSC-025, ¶ 9; see also Duncan, 1993-NMSC-011, ¶ 7 n.2 (noting that, on habeas 

review, “our degree of deference is . . . a review for support by substantial evidence as 

that standard is applied in New Mexico”). But here, despite the State’s timely request, 

the district court failed to enter findings of fact and conclusions of law, and instead 

issued only a brief order in support of its judgment on Defendant’s habeas petition.

As a threshold matter, I would hold that the district court’s failure to enter findings 

and conclusions violated Rule 1-052(A) NMRA, which provides as follows:

In a case tried by the court without a jury, or by the court with an advisory 

jury, the court shall enter findings of fact and conclusions of law when a 

party makes a timely request. Findings of fact and conclusions of law are 

unnecessary in decisions on motions under Rules 1-012, 1-050, or 1-056 

NMRA or any other motion except as provided in Paragraph B of Rule 1-

041 NMRA.

(Emphasis added). Therefore, upon timely request by a party, a district court must, at 

the conclusion of a bench trial, enter findings and conclusions in support of the 

judgment. See, e.g., Aguayo v. Vill. of Chama, 1969-NMSC-005, ¶ 10, 79 N.M. 729, 449 

P.2d 331 (“The trial court must, when requested, find one way or the other upon a 

material fact issue, and failure to do so constitutes error.”); see also Whorton v. Mr. C’s, 

1984-NMSC-080, ¶ 2, 101 N.M. 651, 687 P.2d 86.
This Court held that the prior version of Rule 1-052 NMRA applied to postconviction proceedings. State v. Hardy, 1967-NMSC-203, ¶ 17, 78 N.M. 374, 431 P.2d 

752 (holding that former Rule 52 of the Rules of Civil Procedure, now contained in Rule 

1-052 NMRA, “requiring the making of findings of fact,” applied to petitions for postconviction relief); see also Smith v. Maldonado, 1985-NMSC-115, ¶ 6, 103 N.M. 570, 

711 P.2d 15 (holding the same). In a more recent case, where the district court granted 

habeas relief but entered no findings and conclusions in support of its order, we 

observed that such findings would have been helpful, noting that “[h]abeas corpus 

proceedings are civil in nature; it is thus entirely appropriate for the district court to make 

findings of fact and conclusions of law under Rule 1–052 NMRA . . . .” Lopez v. 

LeMaster, 2003-NMSC-003, ¶ 29 and ¶ 29 n.2, 133 N.M. 59, 61 P.3d 185 (also 

observing that no party had requested that the district court enter findings and 

conclusions).

It is reasonable to apply Rule 1-052’s requirements to habeas proceedings—civil 

collateral proceedings for relief from unjust detention, for which evidentiary hearings are 

frequently required.5 Here, the record encompasses almost forty years of evidence. The 

district court may have granted relief on all or only one of Defendant’s claims; however, 

in the absence of findings, we are required to address all the possibilities and scour an 

extensive evidentiary record. I urge the district courts to comply with the requirements of 

Rule 1-052, to illuminate for the parties and any reviewing court the basis for their 

decisions. However, neither party before us prefers a remand to the district court; 

accordingly, we resolve the State’s appeal in the absence of findings and conclusions.

II. STANDARD OF REVIEW

A. Review of Newly Discovered Evidence Claims in Habeas Appeals

The State asserts (with virtually no basis in the law) that we should, under the 

circumstances of this habeas appeal, review the factual record de novo. Defendant 

argues that we must rather ask whether substantial evidence supports the findings 

necessary to the district court’s judgment. The majority’s approach is unclear. 

Specifically, the majority suggests that, because the district court failed to enter findings 

of fact; because it relied primarily upon transcripts of prior witness testimony; and 

because the new trial standard includes some questions of law, our review of the record 

for purposes of Defendant’s recantation-based claim is de novo. Maj. op. ¶¶ 40-41. 

In my view, this is incorrect. I would agree with Defendant. Asking whether 

substantial evidence supports the findings necessary to the judgment is consistent with 

our treatment of, for instance, habeas proceedings where only the trial judge’s 

comments are available, Lopez, 2003-NMSC-003, ¶ 31 (holding that, in the absence of 

findings, the appellate court looks to the district court’s remarks and construes them to 

uphold the judgment), or jury verdicts in civil cases, where (of course) no findings or 

5Notably, when the district court grants a defendant’s motion for a new trial in a criminal proceeding, the 

district court is required to set forth the reasons for its decision, even though the decision is a 

discretionary one. State v. Griffin, 1994-NMSC-061, ¶ 11, 117 N.M. 745, 877 P.2d 551 (“The trial court 

must clearly set forth the grounds for grant of a new trial.”).
conclusions are entered, see, e.g., Perschbacher v. Moseley, 1965-NMSC-068, ¶ 9, 75 

N.M. 252, 403 P.2d 693 (holding that “[t]he verdict of the jury will not be disturbed 

unless unsupported by substantial evidence. An appellate court will not reverse, unless, 

after viewing the evidence in the light most favorable to . . . the verdict, it is convinced 

that such verdict cannot be sustained either by the evidence or permissible inferences 

therefrom”). We then “resolve all disputed facts in favor of the successful party, indulge 

all reasonable inferences in support of a verdict, and disregard all evidence[] and 

inferences to the contrary.” Clovis Nat’l Bank v. Harmon, 1984-NMSC-119, ¶ 7, 102 

N.M. 166, 692 P.2d 1315 (also noting that substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion” 

(internal quotation marks and citation omitted)).

Furthermore, fact-finders routinely consider transcripts of prior testimony in 

evidence—and the State did not apparently object to the admission of such testimony 

here. When considering a transcript of prior sworn testimony, the fact-finder is not able 

to gauge, for instance, a witness’s demeanor; however, the judge or jury is able to 

evaluate the credibility of the testimony by comparison with other evidence, evaluation 

of internal consistency, and similar considerations. If the majority believes that a district 

court cannot make credibility findings on such a record, then there was insufficient 

evidence for the district court’s judgment with respect to Defendant’s recantation-based 

claims. See Case II, 2008-NMSC-024, ¶ 17 (holding that when seeking a new trial 

based on newly-discovered evidence, the defendant must prove that the evidence is 

both credible and significant). But the majority has not so held. In any event, I am 

unconvinced that we should employ a different standard of review here, where the 

record encompasses evidence from Defendant’s trial, dozens of transcripts of witness 

testimony (including testimony from the recanting witnesses) over multiple hearings in 

the related Case litigation, a video deposition of Defendant, and the live testimony of an 

alibi witness, Mary Helen Tweedy.

With respect to the majority’s third point—that the new trial standard includes 

questions of law, and is therefore “a mixed question of fact and law . . . subject to de 

novo review,” Maj. op. ¶ 40—this seems to me incorrect. While the materiality element 

of the new trial standard arguably presents a question of law (i.e., assessing the 

significance of the evidence in light of the crime(s) at issue), the other elements present 

factual questions, and I see no reason why we would not consider these under a 

deferential standard of review, as we have in other cases. E.g., State v. Moreland, 

2008-NMSC-031, ¶ 21, 144 N.M. 192, 185 P.3d 363 (affirming the trial court’s grant of a 

new trial under an abuse of discretion standard, holding that “the trial court’s finding that 

[the d]efendant’s condition was not discoverable prior to trial with the exercise of due 

diligence was not ‘against the logic and effect of the facts and circumstances of the 

case’” (citation omitted)). The United States Supreme Court recently held that “mixed 

questions [of law and fact] are not all alike” and that when so-called mixed questions 

“immerse courts in case-specific factual issues—compelling them to marshal and weigh 

evidence, [and] make credibility judgments,” appellate courts “should usually review a 

decision with deference.” U.S. Bank N.A. ex rel. CWCapital Asset Mgmt. LLC v. Vill. at 

Lakeridge, LLC, 138 S.Ct. 960, 967 (2018) (holding that the standard of review for a 

mixed question depends “on whether answering it entails primarily legal or factual 
work”). Such an approach is consistent with analyzing the fact-based elements of the 

new trial standard under an abuse of discretion standard, particularly given that the 

absence of any one element is dispositive (and therefore the “ultimate question” is really 

an element-by-element inquiry). Case II, 2008-NMSC-024, ¶ 34. In sum, there is no 

basis to conclude that we ought to conduct de novo review of all the new trial elements; 

I would employ a deferential standard for those that present questions of fact.

B. Defendant’s Habeas Claim Based on Newly Discovered Recantation 

Evidence

Even under a deferential approach, our holding in Case II—that Knight’s and 

Dunlap’s recantations were not newly discovered because they were not qualitatively 

different from those witnesses’ pretrial statements to police—governs here. 2008-

NMSC-024, ¶¶ 35-43. Defendant attempts to distinguish our holding in Case II on 

grounds that 1) Knight and Dunlap have now testified twice, under oath; 2) Case (one of 

the witnesses who placed Defendant at the scene) did not testify in Defendant’s trial; 

and 3) Defendant asserted an alibi supported by witnesses who did not testify in Case’s 

trial. But these factual distinctions, viewed in the light most favorable to the grant of 

habeas relief, bear on materiality; that is, the relevance and weight of the recantations in 

Defendant’s case. They do not alter whether the recantation testimony is newlydiscovered under the first element of the significance analysis. Defense counsel 

effectively conceded this at oral argument. As in Case II, Knight’s and Dunlap’s 

recantations were qualitatively the same as their pretrial statements, on which they were 

cross-examined during Defendant’s trial; as such, the recantations were cumulative. Id. 

¶¶ 39-40. Thus, there is no substantial evidence for the finding that the recantations are 

newly-discovered evidence, and the district court, to the extent it granted habeas relief 

on this basis, abused its discretion. Id. ¶ 34-43 (noting that the failure of the defendant 

to prevail on any one of the new trial factors is dispositive).

III. BRADY CLAIM

Although I agree with the result of my colleagues’ analysis of Defendant’s Brady 

claim, I have a different view on the applicable law.

With respect to the three elements of a Brady violation, the majority asserts that 

the second element—whether the suppressed evidence is “favorable to the accused”—

is defined in Bagley as evidence whose “disclosure and effective use ‘may make the 

difference between conviction and acquittal’ regardless of whether such evidence is 

impeachment evidence or exculpatory evidence.” Maj. op. ¶ 23 (citing Bagley, 473 U.S. 

at 676). Then, despite concluding that Autry’s February 3, 1982 statement “does not 

make a clear difference between conviction and acquittal,” the majority somewhat 

inexplicably holds that “because it could have affected the jury’s assessment of Autry’s 

credibility,” the statement is favorable. Maj. op. ¶ 26. 

I agree that the statement is favorable, but the quoted provision from Bagley is 

not defining “favorable” evidence. The excerpt is explaining that “impeachment 

evidence, . . . as well as exculpatory evidence,” is “favorable to an accused” and “may 
make the difference between conviction and acquittal.” 473 U.S. at 676. In short, 

because both exculpatory and impeachment evidence may change the outcome of a 

trial (i.e., may be material), both are covered by the Brady rule. Id. Some courts have 

offered a definition of “favorable,” though our courts have not. See, e.g., People v. 

Clark, 261 P.3d 243, 343 (Cal. 2011) (“Evidence is favorable to the defense if it helps 

the defense or hurts the prosecution.” (internal quotation marks and citations omitted)); 

United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996) (holding that “favorable” 

evidence “includes not only that evidence tending to exculpate the accused, but also 

any evidence adversely affecting the credibility of the government’s witnesses”). In 

Case II, we simply stated that “[t]he second Brady element is whether the suppressed 

evidence was favorable to the accused, either as impeachment or exculpatory 

evidence.” 2008-NMSC-024, ¶ 50. In my view, this suffices.

As to the third Brady element—materiality—the majority includes in its discussion 

a standard that is no longer good law. The majority quotes Case II, 2008-NMSC-024, ¶ 

54, stating that “[m]ateriality only exists if the suppressed evidence ‘creates a 

reasonable doubt that did not otherwise exist.’” Maj. op. ¶ 27. This statement quotes 

Agurs, 427 U.S. at 112, a 1976 case in which the United States Supreme Court defined 

the materiality element of Brady claims according to three case types. The first are 

cases in which the government has knowingly withheld Brady material; the second are 

cases in which the defendant has made a specific request for Brady material; and the 

third are cases in which the defendant has made only a general request for Brady

material, or no request at all. 427 U.S. at 103-114; Bagley, 473 U.S. at 678-81 

(discussing the three case types). Agurs described materiality for purposes of the first 

class of cases as “any reasonable likelihood” that the undisclosed evidence “could have 

affected the judgment of the jury.” 427 U.S. at 103-104. It offered a similar definition for 

the second class of cases. Id. at 104-106 (implying that evidence is material in this 

context if it “might have affected the outcome” of trial); Bagley, 473 U.S. at 681 (noting 

that Agurs did not expressly offer a definition for this class of cases). With respect to the 

third class of cases, however, Agurs articulated a standard imposing a greater burden of 

proof on the defendant, defining material evidence as that which “creates a reasonable 

doubt that did not otherwise exist.” 472 U.S. at 108-113; Bagley, 473 U.S. at 680-681 

(acknowledging that this definition imposes a “stricter” standard than the “reasonable 

possibility” standard applicable to the first class of cases). It is this third, stricter 

standard that the majority quotes. Maj. op. ¶ 27.

In Bagley, the United States Supreme Court discussed the “reformulation” of 

Agurs in subsequent cases, and then expressly replaced the Agurs tests with a single 

test: “evidence is material only if there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different.” 

673 U.S. at 681-82 (citing and quoting Strickland, 466 U.S. at 694, and deeming the 

new test “flexible enough” to cover the three types of cases discussed in Agurs). 

Accordingly, the “reasonable doubt” test quoted by the majority is no longer applicable 

when evaluating the materiality of alleged Brady evidence. See also, e.g., State v. 

Lykens, 271 Neb. 240, 250 (Neb. 2006) (holding that the “‘reasonable doubt’ standard 

set forth” in Agurs “was superseded” by Bagley, and disapproving a subsequent case 

“to the extent it [applied] the ‘reasonable doubt’ standard of Agurs rather than the 
Bagley standard . . . to analyze whether evidence was wrongfully withheld by the 

prosecution”); United States v. Shaffer, 789 F.2d 682, 688 (9th Cir. 1986) (noting that 

the district court had applied Agurs, and had “held that under both the ‘reasonable 

possibility’ test for specific requests, and the more stringent ‘reasonable doubt’ test for 

general requests, a new trial was required,” but that Bagley, which had been decided 

during the pendency of appeal, created a “new standard,” and applying Bagley instead); 

State v. Spurlock, 874 S.W.2d 602, 619 (Tenn. Crim. App. 1993) (holding that Bagley 

“discarded” the Agurs tests and created a single standard). My colleagues, in effect, 

apply the Bagley standard (Maj. op. ¶ 35), and therefore I concur in the result on this 

aspect of Defendant’s claim. But I submit that we should no longer include the Agurs

“reasonable doubt” standard in our discussions of whether a claimed Brady violation is 

material. 

I also wish to acknowledge Defendant’s arguments that, in spite of our 

conclusion in Case II that Autry’s suppressed February 3, 1982 statement would not 

have been admissible as exculpatory evidence, Defendant’s case is factually 

distinguishable. Specifically, Defendant contends that sightings of Mitchell with Autry in 

the days and weeks prior to the murder, and testimony that Mitchell was afraid of Autry 

“bothering” her, were sufficient evidence of Autry’s motive to commit the crimes against 

Mitchell, such that the suppressed statement would have been admissible at trial. I 

disagree. As we discussed in Case II, direct or circumstantial evidence linking a third 

person to the crimes charged cannot be merely speculative. Id. ¶ 55. For instance, in 

State v. Rosales, 2004-NMSC-022, ¶ 13, 136 N.M. 25, 94 P.3d 768, which we 

discussed in Case II, 2008-NMSC-024, ¶ 55, a suppressed statement would have been 

admissible as exculpatory evidence where the statement, which occurred only a couple 

of weeks before the murder, indicated the third person’s motive to commit murder, and 

“[a]t trial, other evidence showed that [the third person] had recently threatened the life

of the victim, the victim was killed in [the third person’s] vehicle, and the murder weapon 

might have been a pocket knife owned by [the third person].” The proffered 

distinguishing facts here do not demonstrate comparable “links” between Autry and the 

crimes charged. Sightings of Mitchell with Autry, and Mitchell’s fear of being “bothered” 

by Autry, while evidence of a relationship between the two, are not—without more—

evidence linking Autry to Mitchell’s rape and murder. Accordingly, I agree with the 

majority’s conclusion that the February 3, 1982 statement would not have been 

admissible as exculpatory evidence, and was therefore not material to the defense.

IV. ACTUAL INNOCENCE CLAIM

I part ways from my colleagues on the framework necessary for our review of

Defendant’s actual innocence claim. The majority misstates an important aspect of the 

actual innocence standard, Maj. op. ¶ 36 (“Evidence used in a habeas proceeding to 

support a claim for actual innocence must be new evidence,” citing Montoya, 2007-

NMSC-035, ¶ 30), and then applies that standard only to conclude its discussion of 

Defendant’s claims for a new trial. Maj. op. ¶ 57. Actual innocence is a distinct basis for 

habeas relief—one not limited by the new trial requirements. 
We held in Montoya that a habeas petitioner “asserting a freestanding claim of 

innocence must convince the court by clear and convincing evidence that no reasonable 

juror would have convicted him in light of the new evidence.” 2007-NMSC-035, ¶ 30. 

However, we then stated as follows:

[T]he fact that the evidence presented by Petitioner does not fit within our 

rubric for newly discovered evidence does not mean that Petitioner’s claim 

will necessarily fail. When examining a freestanding claim of actual 

innocence, we will not be constrained by the requirements applicable to 

motions for a new trial. Instead, we examine the evidence presented and 

evaluate any reliable evidence. See Cole, 765 N.Y.S.2d at 481, 485 

(examining petitioner’s claim of actual innocence despite the fact that he 

could not meet the criteria for a new trial on the grounds of newly 

discovered evidence because he could not establish that the evidence 

could not have been discovered prior to trial with due diligence). This is 

because the focus of our inquiry is on actual innocence rather than when 

the evidence could have been discovered or procedural error. We 

conclude, however, that the factors which determine whether evidence is 

newly discovered under our motion for a new trial standard remain 

relevant as we review whether or not the evidence presented by Petitioner 

is reliable.

2007-NMSC-035, ¶ 32 (emphasis added). In other words, even if the proffered evidence 

fails to meet all the criteria for a new trial based on newly discovered evidence, we still 

consider it together with other reliable evidence to assess whether any reasonable juror 

would have convicted the defendant. Id. ¶¶ 30-32. 

Here, even viewing the evidence in Defendant’s favor, he did not make the 

requisite showing by clear and convincing evidence, and therefore the district court 

abused its discretion to the extent it granted the habeas petition on the basis of 

Defendant’s actual innocence. This is because, contrary to Defendant’s contention, the 

proffered newly-discovered evidence fails to meet the new trial criteria not merely 

because of the “timing” of the evidence, but because it is largely cumulative, and—in the 

case of the DNA evidence—immaterial. As discussed in Case II, the recantations fail to 

meet the new trial factors because they are cumulative. See 2008-NMSC-024, ¶¶ 35-

41. Autry’s statement was also largely cumulative of his admission that he had made 

unsuccessful advances toward Mitchell, and cumulative of other evidence challenging 

Autry’s credibility. Maj. op. ¶¶ 30, 32. The absence of male DNA on Mitchell’s body and 

clothing, while not supportive of the State’s case, does not exonerate Defendant. In 

Defendant’s original trial, forensic tissue examination showed the presence of no sperm 

cells on or in Mitchell’s body. However, as the majority rightly points out, forcible 

penetration does not necessarily entail ejaculation, nor penetration with the penis; 

accordingly, the absence of male DNA or sperm cells does not rule out forcible 

penetration. Maj. op. ¶ 56. Relatedly, although the later DNA test was more 

sophisticated, Defendant’s expert acknowledged that Mitchell’s body had decomposed 

for a month before it was discovered, and therefore the finding of no sperm cells did “not 
necessarily” mean that there were never sperm cells on or in Mitchell’s body. Thus, the 

DNA evidence is only further inconclusive proof of the absence of evidence.

With respect to other reliable evidence in the record, although the reliability of 

Autry’s testimony is shaky, I cannot say that a jury would be compelled to discredit his 

testimony that Defendant was present just prior to Mitchell’s sexual assault, and that 

Autry observed Defendant strike Mitchell, and rip her pants off. Testimony from witness 

Davis indicated that Defendant had admitted he wanted to get “something” in return for 

helping Mitchell; later, Defendant stated that he “took [Mitchell] out and fucked her.” 

Testimony from witness Hood undermined Defendant’s proffered alibi for the evening in 

question. This evidence, the evidence of Mitchell’s physical injuries (indicative of 

assault), and her open pants, with a torn zipper (consistent with testimony that 

Defendant ripped off her pants) leave me unable to say that “no reasonable juror” could 

have convicted Defendant in light of all the evidence.

V. CONCLUSION

We are better able to render just decisions when the basis for a district court’s 

judgment, here derived from a forty-year record, is illuminated. Had the district court 

rendered findings of fact and conclusions of law on Defendant’s habeas petition, these 

would have informed our review and substantially aided our resolution of his appeal. 

Relatedly, I emphasize that, with respect to recantation evidence, district courts should 

make credibility determinations before addressing the significance of the proffered 

evidence. Case II, 2008-NMSC-024, ¶ 34 (“[W]e believe it would inform our review if trial 

courts, rather than presuming the credibility of the recantations, would make findings 

with respect to each factor relating to the credibility prong before addressing the 

significance prong.”). Nevertheless, for all the reasons set forth hereinabove, I join my 

colleagues in concluding that the district court’s grant of habeas relief must be reversed.

JUDITH K. NAKAMURA, Justice