Marker v. Horton et al

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Laura Fashing. Show Cause Response due by 10/27/2017. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WARREN B. MARKER,
Petitioner,
vs.

No. 1:17-cv-00508 KG/LF

V. HORTON, Warden, and
HECTOR BALDERAS, Attorney
General of the State of New Mexico,
Respondents.
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
Before the Court is Warren Marker’s habeas corpus petition under 28 U.S.C. § 2254 (Doc.
1). Marker challenges his state court conviction for larceny and the unlawful taking of a vehicle in
violation of N.M.S.A. 1978, §§ 30-16-1(E) and 30-16D-1. See Doc. 1, p. 2 of 14. Marker
appealed the conviction, arguing the jury instruction on the latter offense could be read to violate
the prohibition against double jeopardy. See NMCA Memorandum Opinion, Doc. 1-2, p. 1 of 33.
On August 10, 2016, the New Mexico Court of Appeals vacated Marker’s conviction for the
unlawful taking of a vehicle and remanded the case for re-sentencing. Id. at p. 2 of 33.
Marker filed the federal § 2254 petition on May 1, 2017, before he was resentenced. He
asserts the state court mishandled evidence; his counsel rendered ineffective assistance; and he was
denied his right to a speedy trial. See Doc. 1, p. 6, 7, 9 of 14. The petition indicates he did not
raise these issues on appeal and has not filed a habeas petition in the state court. Id.; NMCA
Memorandum Opinion, Doc. 1-2, p. 1 of 33; Doc. 1, p. 3, 6-8 of 14. Marker seeks to prosecute his
habeas claims in federal court because he feels the state courts “are not responding” to him. See
Doc. 1, p. 5 of 14. Perhaps as an aside, he also complains that the state court has not modified his
sentence in accordance with the appellate ruling. See Doc. 1-1, p. 2 of 26. The latter issue is

moot. On June 1, 2017, a month after he filed the § 2254 petition, the state district court reduced
his sentence from 18.5 years to 13 years. See Amended Judgment and Sentence entered June 1,
2017 in D-1226-CR-2013-00240. 1
With respect to Marker’s habeas claims, the federal court generally cannot intervene in an
ongoing state proceeding because a petitioner is frustrated with the state court process. Section
2254(b)(1)(A) requires state prisoners to exhaust all available state court remedies before this
Court can rule on a § 2254 petition. “The exhaustion requirement is satisfied if the federal issue
has been properly presented to the highest state court, either by direct review of the conviction or in
a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.
1994). The requirement can only be excused where “exhaustion would have been futile because
either ‘there is an absence of available State corrective process’ or ‘circumstances exist that render
such process ineffective to protect the rights of the applicant.’” Selsor v. Workman, 644 F.3d 984,
1026 (10th Cir. 2011) (quoting 28 U.S.C. § 2254(b)(1)(B)).
Marker concedes he has not exhausted his state court remedies, but he appears to argue the
state court process is ineffective to protect his rights. Marker asserts he tried to send a habeas
petition to the state district court on March 7, 2017 - about seven weeks before he filed the federal
petition - but the state “court refused to receive [the] writ.” See Doc. 1, p. 3 of 14. He also asserts
that on or about April 4, 2017, the New Mexico Supreme Court “refused to receive” a writ of
certiorari that contained a copy of the state habeas petition. Id. at p. 4 of 14. This explanation,
without more, is insufficient to demonstrate exhaustion would have been futile. For example, it is
1

Although the Amended Judgment and Sentence was not included with Marker’s § 2254 petition, the Court took
judicial notice of the state court criminal docket. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir.
2007) (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”); 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 Fed. R. Evid. 201).

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unclear why his pleadings were not filed, whether they were returned, whether the state court
communicated regarding any deficiencies, and whether he made any additional attempts to file the
habeas petition with the state court.
The Court will afford Marker an opportunity to provide such information or otherwise show
cause why he should be excused from the exhaustion requirement. If he fails to timely respond or
his explanation is insufficient under § 2254(b)(1)(B), the Court may dismiss the petition without
further notice. See Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009) (holding that a § 2254
petition may be dismissed sua sponte if the “failure to exhaust [is] clear from the face of the
petition”).
IT IS THEREFORE ORDERED that, within thirty (30) days of entry of this Order, Marker
shall show cause in writing why his § 2254 federal petition should not be dismissed for failure to
exhaust state court remedies.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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