Escolar Documentos
Profissional Documentos
Cultura Documentos
July 9, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
No. 09-2198
v.
(D.N.M.)
RespondentsAppellees.
ORDER *
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
certain of the jurors who tried his case were actually or potentially biased against
him.
The state court concluded on appeal that Petitioners due process rights
were not violated when, following an order of enlargement of time, he was
indicted eleven days after his initial appearance. 1 The court concluded that New
Mexicos Rules of Criminal Procedure did not require the filing of an indictment
within the ten-day period applicable for a preliminary examination and, moreover,
that the trial court was permitted to enlarge this time period. Furthermore, the
court concluded any error in the initiation of the proceedings did not warrant
dismissal of the indictment because Petitioner had shown no prejudice resulting
from the allegedly improper one-day delay. See State v. Tollardo, 654 P.2d 568,
570 (N.M. 1982) (Dismissal is not the proper remedy for a delay in holding a
preliminary examination when prejudice to the defendant has not been shown.)
The right to a preliminary hearing in the State of New Mexico is one
guaranteed by the state constitution and only becomes a Federal Constitutional
guarantee by the equal protection clause of the Fourteenth Amendment because it
is a part of the due process of the state. Silva v. Cox, 351 F.2d 61, 64 (10th Cir.
1965). Therefore, we must accept the state courts interpretation of its laws
Monroe G. McKay
Circuit Judge
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