State v. Semino

STATE V. SEMINO

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
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Supreme Court.

STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
RAYMOND SEMINO,
Defendant-Respondent.

Docket No. S-1-SC-36275
SUPREME COURT OF NEW MEXICO
June 3, 2019]

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Cristina T.
Jaramillo, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Walter M. Hart, III, Assistant Attorney General,
Santa Fe, NM, for Petitioner

Bennett J. Baur, Chief Public Defender, William A. O’Connell, Assistant Appellate
Defender, Santa Fe, NM, for Respondent

JUDGES

BARBARA J. VIGIL, Justice, wrote the opinion. WE CONCUR: JUDITH K.
NAKAMURA, Chief Justice, MICHAEL E. VIGIL, Justice, PETRA JIMENEZ MAES,
Justice, Retired, Sitting by designation, CHARLES W. DANIELS, Justice, Retired,
Sitting by designation

AUTHOR: BARBARA J. VIGIL

DECISION

VIGIL, Justice.

{1} The State appeals from an order granting Petitioner Raymond Semino’s petition
for writ of habeas corpus. In the underlying case, a jury convicted Petitioner of six
counts of criminal sexual penetration under NMSA 1978, § 30-9-11 (2009), and one
count each of kidnapping under NMSA 1978, § 30-4-1 (2003), criminal sexual contact
under NMSA 1978, § 30-9-12 (1993), and battery under NMSA 1978, § 30-3-4 (1963).
Following an unsuccessful direct appeal, Petitioner filed a petition for writ of habeas
corpus in the district court identifying four bases for relief, including ineffective
assistance of counsel. In December 2016, the district court granted Petitioner’s petition,
concluding that trial counsel was ineffective in two respects—first, in failing to
investigate and raise Petitioner’s competency to stand trial, and second, in failing to
investigate the available DNA evidence that a defense expert later deemed exculpatory.
The district court further concluded that these two errors “caused significant prejudice”
to Petitioner and that had they not occurred, a different result at trial was “reasonably
likely.” Additionally, the district court concluded that the cumulative effect of the errors
increased the likelihood of prejudice such that “[e]ven if [the individual] errors did not
generate sufficient prejudice to warrant a new trial, together, the errors were so
prejudicial that Petitioner was deprived of a fair trial.” The State appeals pursuant to
Rule 5-802(N)(1) NMRA. See id. (“[T]he state may appeal as of right under the Rules of
Appellate Procedure[.]”); see also Rule 12-102(A)(3) NMRA (providing that appeals
from a grant of a writ of habeas corpus shall be taken to the Supreme Court).

{2} The State asserts that the district court erred in granting Petitioner’s petition
based on ineffective assistance of counsel because (1) trial counsel did not have
sufficient reason to believe that Petitioner may not have been competent to stand trial,
(2) trial counsel’s decision to pursue a consent defense was a valid legal strategy that
made an investigation into the DNA evidence unnecessary, and (3) there was no
prejudice stemming from any possible ineffectiveness as a result of trial counsel’s
failure to investigate the available DNA evidence. We agree with the State that the
district court erred in concluding that counsel rendered ineffective assistance of counsel
to Petitioner. We therefore vacate the district court’s order granting Petitioner’s petition
for writ of habeas corpus and dismiss his petition with prejudice. Because the parties
raise no questions of law that New Mexico precedent does not already sufficiently
address, we exercise our discretion under Rule 12-405(B)(1) NMRA to dispose of this
case by non-precedential decision.

I. BACKGROUND

A. The Trial

{3} At trial, the victim, Miranda Baldonado (“Victim”) testified to the events that
formed the basis of Petitioner’s convictions. Victim testified that on July 19, 2007, she
and Petitioner had been driving around looking for drugs. When it began to get dark
outside, Victim repeatedly asked Petitioner to take her home, and though Petitioner
assured Victim that he would, he did not do so. Instead, Petitioner drove to his home,
telling Victim that he needed to make a phone call. Victim went with Petitioner into his
home and waited in the kitchen while Petitioner went into another room. When
Petitioner reappeared, he went to the front door, locked it, and took Victim into his
bedroom.
{4} Victim testified that Petitioner sexually assaulted her in various ways, including
penetrating her vagina with his finger and penis multiple times. Victim also testified that
Petitioner forced her to perform oral sex on him and that Petitioner performed oral sex
on her. Victim attempted, unsuccessfully, to fight off Petitioner. At one point, Victim hit
Petitioner in the nose, causing his nose to bleed profusely. Petitioner then used Victim’s
underwear to clean the blood off of himself. Victim also testified about various physical
injuries she sustained as a result of Petitioner’s attack. These injuries were documented
by Sexual Assault Nurse Examiner (SANE) Gail Gorenz, who testified at trial about the
injuries. At trial, defense counsel presented a consensual sex defense. A jury convicted
Petitioner of six counts of criminal sexual penetration and one count each of kidnapping,
criminal sexual contact, and battery.

B. Habeas Proceedings

{5} After an unsuccessful direct appeal, Petitioner filed a petition for writ of habeas
corpus. Among the issues raised in his petition, Petitioner claimed that trial counsel was
ineffective in failing to (1) investigate and raise his competency to stand trial and (2)
investigate the available DNA evidence. With respect to the competency issue,
Petitioner claimed that he suffered a brain injury as a result of a motorcycle accident
that occurred after the date of the alleged crime but before the trial. Petitioner claimed
that his brain injury substantially impaired his ability to assist his lawyer with his defense
prior to and during his trial. At the habeas proceeding, Petitioner submitted medical
documents relating to the brain injury. The State offered an affidavit from Petitioner’s
trial counsel, and argued that trial counsel did not have sufficient reason to question
Petitioner’s competency. The State pointed out that while counsel was aware of
Petitioner’s brain injury, in his opinion, “Petitioner did not exhibit any noticeable deficit in
his ability to understand and assist in his defense.” The State also asserted that to
establish prejudice, Petitioner must show that he was incompetent to stand trial and had
failed to do so.

{6} As to Petitioner’s second basis for ineffective assistance of counsel, he offered
an affidavit from a DNA analyst who opined that the State’s report was exculpatory.
Specifically, the expert opined that the DNA evidence collected in the case did not
support Victim’s account of the assault. The expert noted that despite Victim’s report
that Petitioner used his penis to penetrate her orally and vaginally multiple times and
had ejaculated “about four time[s] the whole night, in [her] mouth,” “no seminal
material/spermatozoa were” found on the seventeen items tested. However, the expert
did find Petitioner’s blood on four items, including Victim’s underwear, which was
consistent with Victim’s account of having hit Petitioner in the nose resulting in a
nosebleed. Additionally, the expert took issue with the State analyst’s characterization
of the results of two swabs that were tested for the presence of sperm. The State
analyst reported that the results were inconclusive “due to debris preventing complete
microscopic visualization of [cellular] components.” Petitioner’s expert characterized the
statement as “misleading” and “nothing more or less than a fundamental
acknowledgment that ‘no evidence of sperm cells was observed.’ ” Based on the
foregoing information, Petitioner argued that trial counsel “should have consulted with a
DNA expert when [he was] alerted to the existence of DNA evidence.” Defense counsel
had received the State analyst’s report, and Petitioner argued, had counsel consulted
with an expert, the expert would have reviewed the raw data and determined that the
evidence was exculpatory. The State responded that in light of Petitioner’s consensual
sex defense, the DNA evidence was not relevant to Petitioner’s defense and, therefore,
trial counsel had no reason to investigate it.

{7} The district court held a hearing on the petition for writ of habeas corpus on
October 17, 2016. Petitioner testified on his own behalf. The State did not call any
witnesses. On December 1, 2016, the district court issued a writ of habeas corpus
finding two separate instances of ineffective assistance of counsel. The district court
found that (1) Petitioner could not effectively communicate with his attorney and thus
was unable to assist with his defense; (2) a reasonably competent attorney would have
had Petitioner’s competency evaluated; and (3) the failure of counsel to do so was
prejudicial to Petitioner because he was unable to assist counsel in preparing an
effective defense. The second ground upon which the district court concluded that
Petitioner received ineffective assistance of counsel rested on trial counsel’s failure to
investigate and obtain the full DNA report. The district court concluded that trial
counsel’s failure to obtain the information and present evidence to the jury that no
semen was recovered from Victim’s examination resulted in prejudicial error. Finally,
engaging in a cumulative error analysis, the district court concluded that although the
individual errors caused significant prejudice, together, the prejudice was even greater.
The district court ultimately concluded that the errors resulted in cumulative prejudice
such that Petitioner was deprived of a fair trial.

II. STANDARD OF REVIEW

{8} “When this Court addresses the propriety of a lower court’s grant or denial of a
writ of habeas corpus based on ineffective assistance of counsel, findings of fact of the
trial court concerning the habeas petition are reviewed to determine if substantial
evidence supports the court’s findings.” Duncan v. Kerby, 1993-NMSC-011, ¶ 7, 115
N.M. 344, 851 P.2d 466. Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion[.]” State v.
Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks
and citation omitted). “Questions of law or questions of mixed fact and law, . . . including
the assessment of effective assistance of counsel, are reviewed de novo.” Duncan,
1993-NMSC-011, ¶ 7.

III. DISCUSSION

{9} To succeed on a claim of ineffective assistance of counsel, a petitioner must
show that trial counsel “did not exercise the skill of a reasonably competent attorney
and that such incompetent representation prejudiced his case, rendering the trial court’s
result unreliable.” Id. ¶ 10 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“[J]udicial review of the effectiveness of counsel’s performance must be highly
deferential, and courts should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Lytle v. Jordan, 2001-NMSC-016, ¶ 50, 130 N.M.
198, 22 P.3d 666 (internal quotation marks and citation omitted). To establish prejudice
stemming from counsel’s deficient performance, there must be a showing that absent
the deficiency, there was a reasonable probability that the result of the trial would have
been different. Lukens v. Franco, 2019-NMSC-002, ¶ 17, 433 P.3d 288. A failure to
establish either deficient performance or prejudice is fatal to an ineffective assistance of
counsel claim; therefore, if a defendant or petitioner fails to establish either component,
we may end the inquiry there. Id.; see also Strickland, 466 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. In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade
counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.”).

A. Petitioner Failed to Establish Prejudice Stemming from Counsel’s Failure to
Investigate Petitioner’s Competency

{10} The district court concluded that trial counsel failed to exercise the skill of a
reasonably competent attorney in neglecting to investigate and raise Petitioner’s
potential incompetence. The State argues that the information known to trial counsel
was insufficient to raise a question about Petitioner’s competency. We need not address
the issue of a potential deficiency on counsel’s part, because even if counsel’s
performance was deficient, Petitioner’s ineffective assistance of counsel claim would
nonetheless fail because he failed to establish prejudice stemming from counsel’s
failure to investigate his competency.

{11} The district court found that the prejudice arising out of counsel’s failure to
investigate or raise competency below was Petitioner’s inability to assist his attorney to
prepare an effective defense. Such a finding is tantamount to a determination that
Petitioner was incompetent to stand trial. See State v. Najar, 1986-NMCA-068, ¶ 8, 104
N.M. 540, 724 P.2d 249 (explaining that competence to stand trial requires that a
defendant have a factual understanding of the charges against him, that he understand
the nature and significance of the proceedings, and that he have the ability to assist his
attorney in his defense); ABA Criminal Justice Mental Health Standards, Standard 7-
4.1(b) (2016), available at
https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/
mental_health_standards_2016.authcheckdam.pdf (last visited May 2, 2019) (“The test
for determining the defendant’s competence to proceed when the defendant is
represented by counsel should be whether the defendant has sufficient present ability to
consult with counsel with a reasonable degree of rational understanding and otherwise
to assist in the defense, and whether the defendant has a rational as well as factual
understanding of the proceedings.”). If Petitioner was incompetent to stand trial, the
prejudice stemming from trial counsel’s failure to investigate and raise competency is
readily apparent. Cf. State v. Rotherham, 1996-NMSC-048, ¶ 13, 122 N.M. 246, 923
P.2d 1131 (“The law has long recognized that it is a violation of due process to
prosecute a defendant who is incompetent to stand trial.”).

{12} The district court relied entirely on Petitioner’s own testimony at the habeas
hearing in determining that he was not competent at trial, which was the impetus for the
finding of prejudice. In making this determination, the district court credited Petitioner’s
testimony that (1) he suffered a traumatic brain injury following the incident that formed
the basis for the charges in the case, (2) he “had great difficulty processing information
and almost no memory of the incident for which he was charged,” (3) when
communicating with counsel, he was unable to answer direct questions and instead had
to start at the beginning of his memory of his relationship with Victim and recount the
events from there, (4) trial counsel became frustrated with communication difficulties
and gave up on getting information from him, (5) during this time, he was crawling from
his bed to the toilet to vomit and suffered from dizzy spells and migraines, and (6) he did
not understand that he had been charged with having nonconsensual intercourse with
Victim and that when he told his attorney that everything that had occurred between him
and Victim was consensual, he was referring to kissing and hugging. This testimony,
standing alone, is insufficient to support a finding that Petitioner was incompetent at the
time of trial.

{13} Our statutes, rules, and case law set forth a detailed process for determining
whether a defendant is competent to stand trial. See generally NMSA 1978, §§ 31-9-1
to -1.1 (1988, as amended through 1993); Rule 5-602 NMRA (1991); State v. Flores,
2005-NMCA-135, ¶¶ 17-19, 138 N.M. 636, 124 P.3d 1175. Under the law in effect at the
time that Petitioner’s trial and habeas proceedings occurred, “evidence that raise[d] a
reasonable doubt [about] the defendant’s competency to stand trial” was required to be
presented to the court.1 Flores, 2005-NMCA-135, ¶ 17. If that threshold requirement
was met, the defendant’s competency would then need to be evaluated by a qualified
professional before the court could find that the defendant was incompetent to stand
trial. Id. ¶¶ 17-19. The defendant always “bears the initial burden of proving his or her
incompetence by a preponderance of the evidence standard.” State v. Chavez, 2008-
NMSC-001, ¶ 11, 143 N.M. 205, 174 P.3d 988.

{14} Standing alone, a defendant’s own statements about his competency before and
at trial are insufficient to support even a reasonable doubt as to his competency—much
less a conclusion that he was actually incompetent. As our Court of Appeals explained
in Flores, “something more than counsel’s unsubstantiated assertions and opinion
regarding a defendant’s competency is required” to raise a reasonable doubt about a
defendant’s competency. 2005-NMCA-135, ¶ 27. This standard applies equally to a
defendant’s own statements to the court about his competency. While counsel’s and a
defendant’s observations and statements may be considered by a court in assessing a

1
In 2019, a new rule related to competency went into effect. See Rule 5-602.1 NMRA. Under the new rule, the
movant must establish a “reasonable belief that the defendant may not be competent to stand trial,” Rule 5-
602.1(F), which is a different standard than the former “reasonable doubt” standard. Rule 5-602(B)(2)(a) (1991).
defendant’s competency, “those observations and opinions alone cannot trigger
reasonable doubt about the defendant’s competency.” Id. ¶ 29; see also Najar, 1986-
NMCA-068, ¶ 12 (“When a defendant or his counsel asserts the doubtfulness of that
competency, the assertions must be substantiated.”). If such evidence is insufficient to
trigger reasonable doubt, it certainly cannot, without more, support a finding that a
defendant is or was incompetent to stand trial—be it before, during, or after trial.

{15} It is undoubtedly more difficult to assess a defendant’s competency
retrospectively than before—or even during—trial. See Pate v. Robinson, 383 U.S. 375,
387 (1966) (“[W]e have previously emphasized the difficulty of retrospectively
determining an accused’s competence.”). Whatever might be required to establish
incompetence in post-conviction proceedings, it cannot be less than what would have
been necessary to raise a reasonable doubt about Petitioner’s competency in the
underlying proceedings.

{16} In this case, although Petitioner submitted some documentation in the course of
the habeas proceedings to substantiate his head injury, he failed to provide any reliable
extrinsic evidence, such as an expert opinion, that he was incompetent during the
underlying criminal proceedings. Where the district court’s finding of prejudice hinges on
Petitioner’s incompetence during the underlying criminal proceedings that led to a
conviction, an expert opinion is arguably even more critical than it would have been at
the time of trial. Indeed, it is difficult to imagine a situation in which an expert opinion
would be more critical. Before and during trial, the trial court has the opportunity to
observe the defendant first-hand during the course of criminal proceedings, but that is
not the situation during habeas corpus proceedings, when the district court’s vantage
point is further removed and limited by the passage of time. Therefore, in habeas
proceedings, an expert opinion is critical to assessing a defendant’s competency at the
time of trial. In this case, Petitioner failed to provide an expert opinion or any extrinsic
evidence to support his contention that he was incompetent to stand trial during the
underlying proceedings, choosing instead to rely wholly on his own testimony.

{17} Under the circumstances, we hold that the district court’s determination that
Petitioner was incompetent in this case was not supported by substantial evidence. See
Lytle, 2001-NMSC-016, ¶ 32 (“To be substantial, it must be such relative evidence as a
reasonable mind is willing to accept as adequate support for a conclusion, and it must
amount to more than mere speculation or conjecture.” (internal quotation marks and
citation omitted)). Absent substantial evidence to support the finding of prejudice based
on incompetency, the district court’s ultimate conclusion of ineffective assistance of
counsel cannot be sustained.

B. Trial Counsel’s Choice of Defense and Decision to Forego an Investigation
into the DNA Evidence Was Not Unreasonable

{18} As noted previously, during habeas proceedings Petitioner offered an affidavit
from an expert who opined that the available DNA evidence was exculpatory in that it
did not support Victim’s account of the assault. The district court concluded that trial
counsel’s failure to investigate the DNA evidence or present evidence to the jury
consistent with the defense expert’s analysis of that evidence was ineffective and
resulted in prejudicial error. The district court’s conclusion that trial counsel was
ineffective in this regard requires us to consider the reasonableness of counsel’s
decision to pursue a consensual sex defense on Petitioner’s behalf and to forego an
investigation into the DNA evidence. See Lytle, 2001-NMSC-016, ¶ 40 (“Counsel has a
duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.”
(quoting Strickland, 466 U.S. at 691)).

{19} The State argues that an investigation into the available DNA was unnecessary
because Petitioner’s defense at trial was that he had consensual sexual intercourse with
Victim. The State further asserts that trial counsel’s decision to pursue a consensual sex
defense and not to present evidence that Petitioner and Victim had not engaged in
sexual intercourse was a valid legal strategy, which should not be second-guessed. See
State v. Sanchez, 1995-NMSC-053, ¶ 20, 120 N.M. 247, 901 P.2d 178 (“When
reviewing a claim of ineffective assistance of counsel, we do not second-guess defense
counsel’s trial strategy and tactics.”). Finally, the State asserts that even if trial counsel’s
performance was deficient, Petitioner was not prejudiced by trial counsel’s failure to
investigate the DNA report. We need not reach the question of prejudice because we
agree with the State that trial counsel’s choice of defense in this case was not an
unreasonable strategy; therefore, the deficient performance prong of an ineffective
assistance of counsel claim was not satisfied.

{20} “Counsel’s choice of defenses will not be disturbed unless the choice appears
wholly unreasoned or deprives the defendant of his only defense.” State v. Baca, 1993-
NMCA-051, ¶ 34, 115 N.M. 536, 854 P.2d 363; see also State v. Vigil, 1990-NMSC-066,
¶ 19, 110 N.M. 254, 794 P.2d 728 (“We will not substitute our own judgment over trial
tactics for the judgment of defense counsel when it is not clear that the defendant was
deprived of a meritorious defense because the judgment of defense counsel was
without excuse or justification.”).

A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.”

Lytle, 2001-NMSC-016, ¶ 26 (quoting Strickland, 466 U.S. at 689).
{21} Consistent with the foregoing standard, we consider the information known to
counsel when he made the decisions that Petitioner contends were deficient. Petitioner
was charged with four counts of criminal sexual penetration and other related charges.
In addition to Victim’s statements, there was physical evidence to support her claim that
she had been physically and sexually assaulted. The nurse who performed the SANE
examination testified that Victim had numerous bruises and abrasions on her face and
body and swelling and lacerations in her vaginal area. Additionally, a scientific analysis
was performed on the swabs obtained during the SANE examination and the results,
which were disclosed to Petitioner’s attorney, indicated that (1) the vaginal and cervical
swabs were “inconclusive for the presence of semen,” (2) no semen was detected on
the recovered underwear or the oral, speculum, or right inner labia swabs, and (3)
various other swabs tested negative “in the presumptive test for semen.” The report also
stated that Petitioner could not be excluded as the donor of the DNA evidence found on
some of the various items tested and that Petitioner’s DNA was found on the swab from
Victim’s fingernails.

{22} At the habeas hearing, Petitioner testified that he told his attorney he had almost
no memory of the incident. He did remember “meeting [Victim] at the casino[,] and going
out with her several times[,] and being at [a friend’s] house, but [he] did not remember
having sex with her that night.” He also testified that his attorney had proposed a
consent defense and he agreed, responding, “Yes, everything that that person did with
me was never not consented to. We were always consented to, to everywhere we went,
to everything that we did.” Petitioner explained, however, that when he agreed to the
consent defense, he “thought [that] consensual sex meant the kissing and holding of
hands” and at the time, he did not understand that it meant sexual intercourse.

{23} Presented with this set of facts and the information from his client, we disagree
that trial counsel’s decision to offer a consent defense and forego an investigation into
the DNA evidence was unreasonable. The district court concluded that trial counsel’s
failure to obtain the information and present evidence to the jury that no semen was
recovered from Victim’s SANE examination fell below an objective standard of
reasonableness. In reaching this conclusion, the district court rejected the State’s
argument that trial counsel need not have investigated the DNA evidence because
Petitioner offered a consensual sex defense. The district court reasoned that Petitioner
“credibly denied telling trial counsel that he had consensual sex with [Victim].” This
finding, however, does not support a conclusion that counsel was ineffective in this
case. First, Petitioner’s statement to his attorney that “[he] did not remember having sex
with [Victim]” was not a denial that sexual intercourse occurred. This statement,
combined with Petitioner’s assertion that everything that happened between him and
Victim was “consented to” and his agreement to a consensual sex defense, could lead a
competent attorney to decide that investigating the DNA evidence was unnecessary
because a consent defense was the best defense theory to present to the jury. Counsel
could not be expected to know that when Petitioner agreed to a consent defense, he
thought that consensual sex meant something other than sexual intercourse.
{24} Second, the results in the laboratory report did not present a circumstance such
that it was unreasonable for counsel not to inquire into the viability of an alternative
defense. Petitioner could not be excluded as the donor of DNA evidence found on some
of the items tested and his DNA was found on the swab taken from Victim’s fingernails.
Although the report indicated that the results for some of the swabs tested for semen
were negative, the results for other swabs tested were “inconclusive.” Additionally, the
absence of semen on some—or even all—of the swabs does not prove that sexual
intercourse, oral sex, or digital penetration did not occur. In short, given Petitioner’s
general lack of memory, Victim’s statements about the assault, and the corroborating
evidence, it was not unreasonable for trial counsel to forego an investigation into the
DNA evidence based on his decision to offer a consent defense. See Strickland, 466
U.S. at 691 (“The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions. Counsel’s
actions are usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on such information. For
example, when the facts that support a certain potential line of defense are generally
known to counsel because of what the defendant has said, the need for further
investigation may be considerably diminished or eliminated altogether.”). Although
counsel could have investigated whether the DNA evidence might support an alternative
defense, counsel’s decision not to investigate that possibility was within the permissible
range of effective representation under the circumstances, as only reasonable
competence is required, not an ideal or errorless defense. See State v. Orona, 1982-
NMSC-002, ¶¶ 8-9, 97 N.M. 232, 638 P.2d 1077.

{25} Finally, even if trial counsel had considered the disclosed report more carefully
and decided to consult with an expert, trial counsel still could have reasonably decided
to offer a consent defense rather than the theory that no sexual intercourse occurred. A
competent attorney would have had to calculate the odds of success for two viable but
inconsistent defense theories. Implausible or conflicting defense theories can
undermine the credibility of counsel and the viability of the entire defense case. See
State v. Dickert, 2012-NMCA-004, ¶ 29, 268 P.3d 515 (“[A] criminal defendant who
presents a jury with two totally inconsistent defenses must accept the potential peril of
doing so.”). Counsel could reasonably decide to offer a consent defense even if he
knew that a defense expert was willing to testify that the results were not, as the State’s
expert noted, inconclusive but rather that there was a complete absence of semen
anywhere. In light of the other evidence against Petitioner, the absence of semen was
not conclusive proof that the described instances of sexual assault did not occur. Victim
testified that Petitioner only ever ejaculated in her mouth. Therefore, the absence of
semen elsewhere was meaningless insofar as it did not speak to Victim’s claim that
Petitioner penetrated her with his penis and fingers and performed oral sex on her.
Even the absence of semen from Victim’s oral swabs does not prove that Petitioner did
not force Victim to engage in cunnilingus. It only potentially undermines Victim’s claim
that Petitioner ejaculated in her mouth. In short, the DNA evidence results reported by
the defense expert at the habeas proceedings would not have proved Petitioner’s
innocence—at most, it would have given him a second viable defense. See Baca, 1993-
NMCA-051, ¶¶ 29-32 (rejecting a claim of ineffective assistance of counsel, in part,
because the failure to perform testing on evidence that could have helped the defendant
is insufficient to establish prejudice). When faced with two viable yet conflicting
defenses, it is not ineffective assistance of counsel to chose one over the other. See,
e.g., State v. Gonzales, 2007-NMSC-059, ¶¶ 13-16, 143 N.M. 25, 172 P.3d 162
(rejecting claim of ineffective assistance of counsel based on counsel’s failure to offer a
defense that “would have been in direct conflict with the defense trial strategy of
maintaining [the d]efendant’s innocence”); Vigil, 1990-NMSC-066, ¶¶ 17-18 (holding
that counsel was not ineffective for failing to call an expert on battered women because
counsel could have reasonably decided that using an expert to argue that “the killing
was the result of a post-traumatic stress disorder [was] inconsistent with the claim of an
accidental discharge of the gun”). In the same vein, the fact that the defense offered
was unsuccessful and there existed another viable defense does not require a finding of
ineffective assistance of counsel. See State v. Hester, 1999-NMSC-020, ¶ 16, 127 N.M.
218, 979 P.2d 729 (“The mere fact that the defense was not successful does not equate
to a finding of ineffective assistance of counsel.”). Therefore, Petitioner has failed to
carry his burden in establishing the first part of an ineffective assistance of counsel
claim.

C. The District Court’s Finding of Cumulative Prejudice

{26} Lastly, we address the district court’s determination that the combination of the
two instances of ineffective assistance of counsel resulted in cumulative prejudice. This
Court has not addressed whether cumulative prejudice could serve as the basis for a
successful ineffective assistance of counsel claim. Some courts have held that
cumulative prejudice may serve as the basis for an ineffective assistance of counsel
claim where there are at least two instances of deficient performance but there is
insufficient prejudice stemming from each one individually. See, e.g., Harris By and
Through Ramseyer v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995) (holding that
counsel’s numerous deficiencies cumulatively prejudiced the defendant). Because we
determine that at least one of Petitioner’s two claims of ineffective assistance of counsel
fails because of a failure to establish deficient performance, we do not reach the
question of cumulative prejudice.

IV. CONCLUSION

{27} Petitioner has failed to overcome the strong presumption of effective assistance
of counsel. Even if trial counsel acted unreasonably in failing to investigate or raise
Petitioner’s potential incompetence, we conclude that there is insufficient evidence to
support the district court’s finding of prejudice. Furthermore, we conclude that trial
counsel’s decision to forego an investigation into the available DNA evidence based on
his choice of defense was not unreasonable under the circumstances. Accordingly, we
vacate the district court’s order granting Petitioner a writ of habeas corpus and dismiss
his petition with prejudice.

{28} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

MICHAEL E. VIGIL, Justice

PETRA JIMENEZ MAES, Justice, Retired, Sitting by designation

CHARLES W. DANIELS, Justice, Retired, Sitting by designation