Rivera v. State of New Mexico, No. 2:2023cv00463 - Document 9 (D.N.M. 2023)
Court Description: MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Gregory B. Wormuth. Petitioner's response due within 30 days of entry of this Order. (es)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO IRAN C RIVERA, Petitioner, v. Civ. No. 23-463 JB/GBW ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents. MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on Petitioner Iran Casas Rivera’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the “Petition”), filed May 26, 2023. Doc. 1. Having reviewed the matter sua sponte under Habeas Corpus Rule 4, the Court will require Petitioner to show cause why this matter should not be dismissed as untimely. I. Procedural Background1 In May 2021, Petitioner pled guilty to two counts of second degree criminal sexual penetration of a child. See Case No. D-506-CR-2020-00408, Plea and Disposition Agreement (5/25/2021). The state court sentenced him to fifteen years in prison. See id. To better interpret the citations in the Petition, the Court took judicial notice of Petitioner’s state court criminal dockets, Case No. D-506-CR-2020-00408 and S-1-SC-39652. See United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir. 2010) (recognizing a court may take judicial notice of docket information from another court). 1 Guilty Plea/Judgment (6/1/2021); Doc. 1 at 2. Judgment on the conviction and sentence was entered June 1, 2021. See Case No. D-506-CR-2020-00408, Guilty Plea/Judgment (6/1/2021). Petitioner did not file a direct appeal. See Case No. D-506-CR-2020-00408 (docket). His conviction and sentence therefore became final no later than July 2, 2021 (i.e., the first business day following expiration of the 30-day appeal period). See Locke v. Saffle, 237 F.3d 1269, 1271-1273 (10th Cir. 2001) (For purposes of § 2254, the conviction becomes final upon the expiration of the appeal period); NMRA, Rule 12-201 (providing that a notice of appeal must be filed within 30 days after entry of the judgment). More than one year passed with no apparent tolling activity. See Case No. D-506-CR-202000408 (docket). Then, on July 25, 2022, Petitioner filed a state habeas petition. See Case No. D-506-CR-2020-00408, Habeas Corpus Petition (7/25/2022). The state court dismissed the petition on September 12, 2022. See Case No. D-506-CR-2020-00408, Order of Dismissal (9/12/2022). On October 13, 2022, Petitioner filed a petition for a writ of certiorari in the New Mexico Supreme Court. See Case No. S-1-SC-39652, Cert. Petition (10/13/2022). The New Mexico Supreme Court denied the petition on March 31, 2023. See id., Order Denying Petition (3/31/2023). Petitioner filed the present § 2254 Petition on May 26, 2023. Doc. 1. He argues, inter alia, that he was denied due process and that his counsel was ineffective, in violation of his rights under the Fourteenth and Sixth Amendments to the United States 2 Constitution. Doc. 1 at 2. The Court granted Petitioner’s Motion to proceed in forma pauperis, doc. 8, and the matter is ready for initial review. II. Timeliness of the § 2254 Petition Petitions for a writ of habeas corpus by a person in state custody must generally be filed within one year after the defendant’s conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The one-year limitation period can be extended: (1) While a state habeas petition is pending, § 2244(d)(2); (2) Where unconstitutional state action has impeded the filing of a federal habeas petition, § 2244(d)(1)(B); (3) Where a new constitutional right has been recognized by the Supreme Court, § 2244(d)(1)(C); or (4) Where the factual basis for the claim could not have been discovered until later, § 2244(d)(1)(D). Equitable tolling may also available “when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his [or her] control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). In this case, the limitation period began to run no later than July 2, 2021, when the conviction became final. See Locke, 237 F.3d at 1271-1273. There was no discernable tolling activity during the next year, and the one-year period expired on July 5, 2022. Any state habeas petitions filed after that date did not restart the clock or otherwise impact the expired limitations period. See Fisher v. Gibson, 262 F.3d 1135, 1142-1143 3 (10th Cir. 2001). Petitioner must therefore show cause why the Petition, filed May 26, 2023, is not time-barred. The failure to timely respond or overcome the time-bar will result in dismissal of the habeas action without further notice. See United States v. Mitchell, 518 F.3d 740, 746 (10th Cir. 2008) (“AEDPA’s time bar . . . may be raised by a court sua sponte . . . . [H]abeas proceedings are different from ordinary civil litigation and, as a result, our usual presumptions about the adversarial process may be set aside.”) IT IS ORDERED that within thirty (30) days of entry of this Order, Petitioner must file a response showing cause, if any, why his § 2254 habeas petition should not be dismissed as untimely. _________________________________ GREGORY B. WORMUTH CHIEF UNITED STATES MAGISTRATE JUDGE Presiding by Consent 4
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