Cunningham v. Horton et al

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Lourdes A. Martinez. Show Cause Response due by 5/30/2017. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANNY A. CUNNINGHAM,
Petitioner,
v.

No. CV 17-0354 LH/LAM

V. HORTON,
Respondent.
ORDER TO SHOW CAUSE
THIS MATTER is before the Court pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Court on Petitioner Danny A. Cunningham’s Petition
Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody, filed on
March 20, 2017, which challenges Petitioner’s conviction and sentence in State of New Mexico v.
Cunningham, CR-98-123. [Doc. 1] For the following reasons, the Court will require Petitioner
to show cause why his § 2254 petition should not be dismissed as untimely under 28 U.S.C.
§ 2244(d)(1)(A).
The following facts are derived from the face Petitioner’s § 2254 petition. See Kilgore v.
Att’y Gen. of Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008) (noting that a district court can
dismiss a habeas petition sua sponte if “untimeliness is clear from the face of the petition”). On
October 22, 1998, Petitioner was convicted of murder in the Fifth Judicial District Court of the
State of New Mexico and, on November 30, 1998, Petitioner was sentenced to life in prison. See
[Doc. 1 at 1]. Petitioner’s conviction was affirmed by the New Mexico Supreme Court on
March 9, 2000, and Petitioner did not file a petition for writ of certiorari in the United States

Supreme Court. See id. at 2-3. Approximately eleven years later, on August 29, 2011, Petitioner
filed his first state habeas petition in the Fifth Judicial District Court of the State of New Mexico.
See id. at 3. Petitioner’s state habeas petition was denied on January 29, 2015 and his writ of
certiorari to the New Mexico Supreme Court was denied on December 22, 2015. See id. at 3-4.
Title 28 of the United States Code, section 2244(d) imposes a “1-year limitation” on “an
application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State
court.” 28 U.S.C. § 2244(d)(1). The one-year limitation begins to run, in relevant part, from
“the date on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” § 2244(d)(1)(A). The New Mexico Supreme Court
affirmed Defendant’s conviction on March 9, 2000, and, therefore, Defendant’s conviction
became final ninety-days later, on June 7, 2000, after the expiration of the time to file a petition for
writ of certiorari in the United States Supreme Court. See U.S. Sup. Ct. R. 13.1 (providing that a
petition for a writ of certiorari to review a judgment of a state court of last resort is timely filed
“within 90 days after the entry of judgment’); see also Locke v. Saffle, 237 F.3d 1269, 1273
(10th Cir. 2001) (holding, under § 2244(d)(1)(A), that “a petitioner’s conviction is not final and
the one-year limitation period for filing a federal habeas petition does not begin to run until
- following a decision by the state court of last resort - after the United States Supreme Court has
denied review, or, if no petition for certiorari is filed, after the time for filing a petition for
certiorari with the Supreme Court has passed”) (internal quotation marks and citations omitted).
Thus, the one-year limitation period for Defendant to file a § 2254 petition expired on
June 7, 2001.
The Court recognizes that the one-year limitation period is subject to statutory tolling
during the time in which “a properly filed application for State post-conviction or other collateral

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review with respect to the pertinent judgment or claim is pending.” § 2244(d)(2). However, a
state habeas petition submitted after the expiration of the one-year limitation period “does not toll
the limitations period.”
(unpublished).

Gunderson v. Abbott, 172 F. App’x 806, 809 (10th Cir. 2006)

In the present case, Petitioner’s state habeas petition was filed on

August 29, 2011, more than ten years after the expiration of the one-year limitation period and,
therefore, Petitioner is not entitled to statutory tolling under § 2244(d)(2).
The Court further recognizes that the one-year limitation period in § 2244(d) is subject to
equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). “Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is appropriate only in “rare and
exceptional circumstances” (Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)), and “a garden
variety claim of excusable neglect” is not enough to warrant application of the doctrine (Holland,
560 U.S. at 651 (internal quotation marks and citation omitted)).
Based on the foregoing, the Court will afford Petitioner an opportunity to explain why the
doctrine of equitable tolling may be applicable to his § 2254 petition and why it should not be
dismissed as untimely under § 2254(d)(1)(A).1 Failure timely to respond to this Order or
otherwise show cause may result in the dismissal of Petitioner’s § 2254 petition without
further notice.

1

In his § 2254 petition, Petitioner appears to make an equitable tolling argument, explaining that he was
diagnosed with prostate cancer in October 2014, he spent most of 2015 seeking and waiting for treatment, and he was
transferred to Guadalupe County Correctional Facility in March 2016. See [Doc. 1 at 23-24]. However, these events
occurred more than thirteen years after the expiration of the one-year limitation period on June 7, 2001 and, therefore,
are insufficient to invoke the doctrine of equitable tolling.

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IT IS THEREFORE ORDERED that, within thirty (30) days of the date of this
Order, Petitioner shall file a response showing cause, if any exists, why his § 2254 petition should
not be dismissed as untimely.
IT IS FURTHER ORDERED that, if Petitioner fails to show cause within thirty days, the
Court may dismiss his § 2254 Petition as untimely without further notice.
IT IS SO ORDERED.

____________________________________
LOURDES A. MARTỈNEZ
UNITED STATES MAGISTRATE JUDGE

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