Wilson v. Hatch, et al.

Filing 40

ORDER by Chief Magistrate Judge Karen B. Molzen denying Mr. Wilson's Petition Seeking Leave To File A Pro Se Initial Pleading, and directing the Clerk of the Court to docket Mr. Wilson's Petition Seeking Leave To File A Pro Se Initial Pleading, his proposed § 2254 motion, and all attachments and exhibits, in Wilson v. Hatch, No. 15-CV-00989-WJ-LF, as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JAMES WILSON,
Petitioner,
v.
GERMAN FRANCO,

Respondent.
ORDER ON PETITION SEEKING LEAVE TO FILE A PRO SE INITIAL PLEADING
THIS MATTER is before the Court on Mr. James Wilson’s Petition Seeking Leave To
File a Pro Se Initial Pleading. In Wilson v. County of Lea, 16-CV-00328-MCA-GBW, Doc. 17 at
8 (D.N.M. May 16, 2016), the Court imposed filing restrictions on Mr. Wilson, prohibiting him
“from initiating further litigation in this Court arising out of his conviction, sentencing, or
probation revocation in State of New Mexico Criminal cases nos. D-506-CR-2010-00213, D506-CR-2011-00271, D-506-CR-2011-00272, and D-506-CR-2011-00234 . . . unless either a
licensed attorney who is admitted to practice before this Court signs the pleading or Wilson first
obtains permission to proceed pro se from the Court.” Pursuant to the Court’s order, Mr. Wilson
seeks permission to proceed pro se on a proposed Petition Under 28 U.S.C. § 2254 For Writ of
Habeas Corpus By A Person in State Custody, which challenges Mr. Wilson’s conviction,
sentencing, and probation revocation in State of New Mexico criminal cases nos. D-506-CR2011-00271, D-506CR-2011-00272, and D-506-CR-2011-00324.

The Court notes that Mr. Wilson previously filed a § 2254 motion challenging his
conviction, sentencing and probation revocation in in State of New Mexico criminal cases nos.
D-506-CR-2010-00213, D-506-CR-2011-00271, D-506CR-2011-00272, and D-506-CR-201100324. See Wilson v. Hatch, No. 15-CV-00989-WJ-LF, Doc. 1 (D.N.M. November 2, 2015). In
that case, the Court ordered the Respondent, Warden Timothy Hatch, to file an answer. Id. at
Doc. 4. Respondent filed a lengthy answer, contending that Mr. Wilson had failed to exhaust his
available state-court remedies, that his claims are not cognizable in a federal habeas proceeding,
and that his claims lack merit. Id. at Doc. 18. On October 3, 2016, Mr. Wilson filed an amended
§ 2254 motion, seeking to challenge an order of revocation of probation entered in criminal cases
nos. 506-CR-2011-00271, D-506CR-2011-00272, and D-506-CR-2011-00324 on May 20, 2016.
Id. at Doc. 27. Respondent objected to the amended § 2254 motion, noting that the amendment
was untimely, filed without Respondent’s written consent, and not in the interest of justice under
Fed. R. Civ. P. 15. Id. at Doc. 31. In an Order dated November 4, 2016, the Court held that
because Mr. Wilson’s “Amended Petition was filed without Respondents’ written consent or the
Court’s leave . . . the Court will recharacterize it as a motion to amend his § 2254 petition under
Rule 15(a)” and that “[t]he opposed motion to amend will be addressed by the Court in a
separate order. No further responses from the parties are required at this time.” Id. at Doc. 32.
Before the Court had an opportunity to rule on Mr. Wilson’s opposed motion to amend his
§ 2254 motion, Mr. Wilson filed a motion requesting a voluntary dismissal of the action without
prejudice, which the Court granted on February 23, 2017. Id. at Docs. 37, 38.
In his proposed § 2254 motion, Mr. Wilson seeks to challenge the May 20, 2016 order of
probation revocation in criminal cases nos. 506-CR-2011-00271, D-506CR-2011-00272, and D506-CR-2011-00324.

The constitutionality of Mr. Wilson’s conviction, sentencing, and

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probation revocation in criminal cases nos. 506-CR-2011-00271, D-506CR-2011-00272, and D506-CR-2011-00324 and whether to permit Mr. Wilson to amend his § 2254 motion to include
the May 20, 2016 order of probation revocation, was fully briefed and pending before the Court
in Wilson v. Hatch, No. 15-CV-00989-WJ-LF. Mr. Wilson voluntarily moved to dismiss that
action, however, in order to file the proposed new action, which raises identical claims. The
Court will not permit Mr. Wilson to engage in improper forum-shopping by filing a new and
duplicative § 2254 action. The Court will, however, liberally construe Mr. Wilson’s Petition
Seeking Leave To File a Pro Se Initial Pleading, proposed § 2254 motion, and all attachments
and exhibits, as a motion for relief from judgment in Wilson v. Hatch, No. 15-CV-00989-WJ-LF
pursuant to Fed. R. Civ. P. 60(b). See Castro v. United States, 540 U.S. 375, 381 (2003) (noting
that Courts may “ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category”).
IT IS THEREFORE ORDERED that Mr. Wilson’s Petition Seeking Leave To File A Pro
Se Initial Pleading is DENIED; and the Clerk of the Court is directed to docket Mr. Wilson’s
Petition Seeking Leave To File A Pro Se Initial Pleading, his proposed § 2254 motion, and all
attachments and exhibits, in Wilson v. Hatch, No. 15-CV-00989-WJ-LF, as a motion for relief
from judgment pursuant to Fed. R. Civ. P. 60(b).

_________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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