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State v. Martinez

85 N.M. 293 (N.M. Ct. App. 1973)
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State v. Martinez

3 Citing cases

  1. O'Kelley v. Heredia

    No. CIV-10-702 JCH/ACT (D.N.M. Mar. 28, 2011)

    90. With regard to the prosecutor's statements in closing, the state court stated that "the closing arguments recited at [O'Kelley's] trial were made on the record [and as such] may not be reviewed in a post-conviction proceeding" citing State v. Martinez, 85 N.M. 293, 511 P.2d 779 (N.M. Ct.App. 1973.) [Doc. 11-4, Ex.W at p. 2.] Thus, this claim is procedurally defaulted as well.

  2. Turley v. State

    571 S.W.2d 465 (Mo. Ct. App. 1978)   Cited 5 times

    Stat.Ann. § 590.01 (Supp. 1978)); State v. Martinez, 85 N.M. 293, 511 P.2d 779 (Ct.App. 1973) (N.M.Stat.Ann. § 21-1-1 (93) (1970); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973) (S.C.Code § 17-351)). In the following cases cited by McCrary, 529 S.W.2d at 473 n. 7, the relevant state statute provides that issues which were not raised below cannot be raised in post conviction proceedings, with no special provision for constitutional issues: Gross v. State, 320 N.E.2d 817 (Ind.Ct.App. 1974) (Ind.Code Ann., § 35-10-2-1 [9-3302], Rule P. C. 1, §§ 1(b) 8 (Burns 1975); Duguay v. State, 309 A.2d 234 (Me. 1973) (Me.

  3. McCrary v. State

    529 S.W.2d 467 (Mo. Ct. App. 1975)   Cited 49 times
    In McCrary the court extended Fay v. Noia's "waiver" rule to considerably less "deliberate" actions by holding that the failure to raise an issue on direct appeal was within Fay v. Noia's directive of disallowing post conviction relief.

    It is the trend in the state courts to reject an issue in a post conviction motion where such issue could have but was not raised on direct appeal.Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Holiday v. State, 512 S.W.2d 953, 957 (Tenn.Cr.App. 1972); Neighbors v. People, 171 Colo. 349, 467 P.2d 804, 808 (banc 1970); Gross v. State, 320 N.E.2d 817, 820 (Ind. App. 1974); People v. Robinson, 25 Ill.App.3d 52, 322 N.E.2d 505, 508 (1975); State v. Martinez, 85 N.M. 293, 511 P.2d 779 (App. 1973); Johnson v. Warden, Nevada State Prison, 515 P.2d 63, 64 (Nev. 1973) — particularly strong holding; Walker v. State, 216 Kan. 1, 530 P.2d 1235, 1237 (1975); Tyson v. State, 298 Minn. 559, 214 N.W.2d 461 (1974); State v. Kuecey, 60 Wis.2d 677, 211 N.W.2d 453, 455 (1973); Sellers v. Boone, 261 S.Ct. 462, 200 S.E.2d 686 (1973); State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182, 184 (1974); Duguay v. State, 309 A.2d 234 (Me. 1973); Morrison v. State, 283 So.2d 137 (Fla.App. 1973). See A.B.A. Standards Relating to Post Conviction Remedies, § 6.1, pp. 85-90 (1967).