Perea v. Hatch

Filing 6

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning. IT IS ORDERED that: (i) the Petitioner's Request for Appointment of Counsel, filed November 28, 2016 (Doc. 5), is DENIED; (ii) the Petitioner's Petition for Writ of Habeas Corpus, filed August 5, 2016 (Doc. 1), is DISMISSED; and (iii) a certificate of appealability is DENIED. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LARRY PEREA,
Petitioner,
vs.

No. CIV 16-0893 JB/GJF

TIMOTHY HATCH,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court, under rule 4 of the Rules Governing Section
2254 Proceedings and rule 12(b)(6) of the Federal Rules of Civil Procedure, on the Petitioner’s
Petition for Writ of Habeas Corpus, filed August 5, 2016 (Doc. 1)(“Petition”). The Court
concludes that 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations bars Petitioner Larry
Perea’s claims under 28 U.S.C. § 2254. Accordingly, the Court will dismiss the Petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Court has reviewed the official record in Perea’s state court proceedings through the
Supreme Court of New Mexico’s Secured Online Public Access service. Pursuant to rule 201 of
the Federal Rules of Evidence, the Court takes judicial notice of the official New Mexico court
records in Perea’s two state criminal cases, Nos. D-202-CR-200800239 and D-202-CR-200806058, Second Judicial District, County of Bernalillo, State of New Mexico. See United States
v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(stating that courts have “discretion to take
judicial notice of publicly-filed records . . . and certain other courts concerning matters that bear
directly upon the disposition of the case at hand”); Shoulders v. Dinwiddie, 2006 WL 2792671,
at *3 (W.D. Okla. 2006)(Cauthron, J.)(noting that courts may take judicial notice of state court

records available on the internet, including district court docket sheets); Stack v. McCotter, 2003
WL 22422416 (10th Cir. 2003)(unpublished)(finding that a state district court’s docket sheet was
an official court record subject to judicial notice under rule 201).

Perea’s Petition, the

attachments to the Petition, and the official New Mexico court records show the following.
A Grand Jury indicted Perea for Trafficking a Controlled Substance on January 16, 2008,
in Second Judicial District case No. D-202-CR-200800239. Perea entered a no-contest plea on
February 4, 2009, and was sentenced to nine years of imprisonment on May 11, 2009. See State
v. Perea, No. D-202-CR-200800239, Judgment, Sentence & Commitment, filed May 11, 2009.
Perea did not appeal from the judgment in that case and has never sought collateral review of his
conviction or sentence.
In a separate state criminal proceeding, Second Judicial District Court case No. D-202CR-200806058, a jury convicted Perea of voluntary manslaughter and Possession of a Controlled
Substance. The judgment on his conviction in that case was entered on February 7, 2011. See
State v. Perea, No. D-202-CR-200806058, Judgment, Sentence and Commitment, filed February
7, 2011. Perea filed a direct appeal from the judgment, and, on June 15, 2011, the Court of
Appeals of New Mexico affirmed his conviction. Perea did not petition the Supreme Court of
New Mexico to review the Court of Appeals of New Mexico’s decision. On September 8, 2011,
a supplemental information was filed charging Perea as a habitual offender and seeking a firearm
enhancement to the sentence on his manslaughter and possession convictions. See State v.
Perea, No. D-202-CR-200806058, Supplemental Information, filed September 8, 2011. Perea
was convicted as a habitual offender, and an amended judgment was entered on December 6,
2012, sentencing him to a total of sixteen years and six months imprisonment. See State v.

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Perea, No. D-202-CR-200806058, Amended Judgment, Sentence and Commitment, filed
December 6, 2012. Perea did not appeal the amended judgment.
Instead, on January 28, 2013, Perea filed a motion to amend the judgment, asking that the
sentence be amended to credit him for time served before sentencing on the habitual offender
charges.

See State v. Perea, No. D-202-CR-200806058, Motion to Amend Judgment and

Sentence, filed January 28, 2013. The district court denied his motion on April 2, 2013. See
State v. Perea, No. D-202-CR-200806058, Order, Application, Petition or Motion Denied, filed
April 2, 2013. On July 29, 2014, Perea filed a motion to proceed in forma pauperis and to obtain
copies of his trial transcripts.

See State v. Perea, No. D-202-CR-200806058, Petition for

Trascripts [sic] of Trial and Other Documents Forthwith, filed July 29, 2014.

Then, on

September 29, 2014, Perea filed a petition for writ of mandamus to compel the provision of
transcripts. See State v. Perea, No. D-202-CR-200806058, Petition for Writ of Mandamus, filed
September 29, 2014. The district court dismissed his petition on October 24, 2014. See State v.
Perea, No. D-202-CR-200806058, CLS: Close Miscellaneous, filed October 24, 2014. Two
years later, on October 27, 2016, Perea filed a petition for a writ of habeas corpus in state court.
See State v. Perea, No. D-202-CR-200806058, Petition for Writ of Habeas Corpus, filed October
27, 2016. The district court denied that petition on January 12, 2017. See State v. Perea, No. D202-CR-200806058, Procedural Order on Petition for Writ of Habeas Corpus, filed January 12,
2017. Perea did not appeal any of the state district court’s rulings other than the direct appeal
from the February 7, 2011, judgment.
Perea filed his Petition in federal district court on August 5, 2016, before filing his habeas
corpus petition in state court. Perea states the factual basis for his Petition as follows: “Due to
the 1 yr firearm enhancement added to the basic sentence of voluntary manslaughter I shouldn’t

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received [sic] a 4 yr habitual for Count 1 or Count 2 unless the firearm enhancement was never
initiated.” Petition ¶ 3, at 2. Perea requests that: “[T]he 4 yr Habitual from Count #1 voluntary
manslaughter (1 yr. firearm enhancement + 4 yr HB) be recanted & dismissed from my 16 ½ yr
sentence to leave a total of 12 ½ yrs.” Petition ¶ 7, at 2.
Perea has also filed a Request for Appointment of Counsel, filed November 28, 2016
(Doc. 5)(“Motion for Counsel”). He appears to request appointment of counsel to represent him
in a civil tort proceeding in state court. See Motion for Counsel at 1-2. The Court does not have
any authority to appoint counsel in a state court proceeding. Even if Perea’s request was directed
to this case, however, the Court denies the request as moot in light of the Petition’s dismissal.
LAW REGARDING THE ONE-YEAR STATUTE OF LIMITATIONS
ON § 2254 CLAIMS
Perea used a state-court form for his habeas corpus petition, rather than a federal habeas
petition form. The relief that he requests, however, is modification of his state court sentence.
See Petition at 2. Where a petition challenges the legality of present confinement pursuant to a
state court conviction, the court liberally construes the action as seeking a writ of habeas corpus
under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). As a consequence, the
Court construes Perea’s Petition as a petition for relief from a conviction or sentence by a person
in state custody under 28 U.S.C. § 2254.
Petitions for a writ of habeas corpus by a person in state custody under 28 U.S.C. § 2254
are governed by a one-year statute of limitations. See 28 U.S.C. § 2244(d). Section 2244(d)(1)
provides:
A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of --

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(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). Section 2244(d)(2) further provides: “The time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.” 28 U.S.C. § 2244(d)(2).
The one-year statute of limitations for filing a § 2254 petition runs from the time the
conviction becomes final and is subject to statutory tolling. See 28 U.S.C. § 2244(d). This oneyear statute of limitations is tolled while “a properly filed application for State post-conviction”
relief is “pending.” 28 U.S.C. § 2244(d)(2). Until a state habeas petition “has achieved final
resolution through the State’s post-conviction procedures, by definition it remains ‘pending.’”
Carey v. Saffold, 536 U.S. 214, 219-20 (2002). See also Holland v. Florida, 560 U.S. 631, 635,
638 (2010). To determine when a petitioner’s state habeas proceedings become complete, the
Court looks to the state’s procedural rules. See Wade v. Battle, 379 F.3d 1254, 1260-62 (11th
Cir. 2004). The one-year statute-of-limitations clock begins to run again when the proceedings
on the state habeas-corpus petition are finally concluded. See Holland v. Florida, 560 U.S. at
638 (noting that state habeas corpus proceedings concluded and the statute of limitations clock

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began to tick when the state Supreme Court issued its mandate). A § 2254 petition filed after
the one-year period has expired is time-barred. See 28 U.S.C. § 2244(d). Dismissal of a § 2254
habeas corpus petition on the grounds that it is time-barred properly proceeds under rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 (10th
Cir. 2001).
The one-year statute of limitations may be subject to equitable tolling. Equitable tolling
is available only when an inmate diligently pursues his claims and demonstrates that the failure
to timely file was caused by extraordinary circumstances beyond his control. See Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir.
2003). Ignorance of the law, ignorance of the limitation period, and inability to obtain legal
assistance do not excuse the failure to file within the statutory time period. See Miller v. Marr,
141 F.3d 976, 977-78 (10th Cir. 1998); Sanders v. Mahaffey, 2000 WL 1730893, at *2 (10th Cir.
2000); Washington v. United States, 2000 WL 985885, at *2 (10th Cir. 2000).
ANALYSIS
Because all of Perea’s asserted claims were available to him from the time the amended
judgment was entered on December 6, 2012, on his criminal conviction as an habitual offender, §
2244(d)(1)(A)’s one-year limitation period is the applicable period in this case. Perea filed a
post-judgment motion to amend, which the state district court denied on April 2, 2013. See State
v. Perea, No. D-202-CR-200806058, Order, Application, Petition or Motion Denied, filed April
2, 2013. The one-year period governing Perea’s § 2254 claims, then, began to run on May 2,
2013, after the time for taking an appeal from the December 6, 2012, amended judgment and
denial of the motion to amend expired. See Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th

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Cir. 2011); Rule 12-201(A)(2) NMRA. The one-year limitations period expired one year later on
May 2, 2014.
A period of approximately fifteen months elapsed before Perea’s next state court filing of
a motion to compel transcripts of his criminal trials on July 29, 2014. In general, a motion to
compel transcripts is not treated as a tolling motion for purposes of the one-year limitations
period. See Carey v. Saffold, 536 U.S. at 219-20; Holland v. Florida, 560 U.S. at 635, 638.
Even if, however, the one-year period had not already expired and the motion was treated as a
tolling motion, the statute of limitations would have resumed again after the Supreme Court of
New Mexico denied Perea’s petition relating to the transcript request on October 24, 2014. See
Holland v. Florida, 560 U.S. at 638. Perea filed his Petition in the Court on August 5, 2016,
more than a year and nine months after final disposition of his transcript motion. Even using the
later October 2014 date to commence the running of the statute of limitations, Perea’s habeas
corpus action was barred almost a year before it was filed. See 28 U.S.C. § 2254(d).
Absent equitable tolling, § 2244(d)’s statute of limitations barred Perea’s § 2254 claims
well before his August 5, 2016, filing. See Miller v. Marr, 141 F.3d at 977-78. Perea contends
that, because he “was never properly educated about appeals, habeas, ect [sic] until recently,
Therefore [sic], I’m asking that the courts grant me relief & favor.” Petition ¶ 5, at 2. Perea’s
lack of education about the habeas corpus process, however, does not afford him a basis for
equitable tolling in this case. See Miller v. Marr, 141 F.3d at 977-78. Even if based on
ignorance of the law, Perea’s decision to wait almost two years after final denial of his motion to
compel transcripts before filing his § 2254 Petition does not constitute an extraordinary
circumstance beyond his control that would entitle him to equitable tolling of the one-year
limitation period. See Marsh v. Soares, 223 F.3d at 1220.

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Perea filed his Petition long after the expiration of the one-year limitations period. No
basis exists for tolling the statute of limitations. The § 2244(d) statute of limitations thus bars
Perea’s § 2254 claims. Perea’s Petition does not state a claim upon which relief can be granted,
and the Court must dismiss it under § 2244(d) and rule 12(b)(6). Further, because Perea has not
made a substantial showing of denial of a constitutional right, the Court will deny a certificate of
appealability pursuant to rule 11 of the Rules Governing Section 2254 Proceedings.
IT IS ORDERED that: (i) the Petitioner’s Request for Appointment of Counsel, filed
November 28, 2016 (Doc. 5), is denied; (ii) the Petitioner’s Petition for Writ of Habeas Corpus,
filed August 5, 2016 (Doc. 1), is dismissed; and (iii) a certificate of appealability is denied.

_______________________________
UNITED STATES DISTRICT JUDGE
Parties:
Larry Perea
Clayton, New Mexico
Plaintiff Pro Se

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