Chavez v. Franco et al

Filing 20

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 1 Petition for 2254 Relief filed by Michael F. Chavez. Objections to R&R due by January 18, 2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL F. CHAVEZ,
Petitioner,
Case No. 1:17-cv-00871-KG-KRS
v.
GERMAN FRANCO, Warden;
and STATE OF NEW MEXICO,
Respondents.

PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
Michael Chavez, an inmate confined at the Penitentiary of New Mexico, petitions for a
writ of habeas corpus under 28 U.S.C. § 2254. On August 9, 2011, Chavez pleaded guilty to
two counts of felony murder, N.M. Stat. Ann. § 30-2-1(A)(2). (Doc. 15-1, at 3-6). The state
court sentenced Chavez to concurrent terms of life in prison. (Doc. 15-1, at 1-2). As grounds for
collateral relief, Chavez claims: (1) his plea was involuntary; (2) the evidence against him was
unlawfully seized; (3) police interrogated him after he invoked his right to remain silent; (4) his
trial and habeas counsel were constitutionally ineffective; and (5) the trial judge was biased.
(Doc. 1). Respondents argue that these claims are barred by the Antiterrorism and Effective
Death Penalty Act’s (“AEDPA”) one-year statute of limitation, 28 U.S.C. § 2241. (Doc. 15).
Although Chavez initially claimed AEDPA’s year stopped while his first federal habeas case was
under consideration, he now concedes that this earlier proceeding did not toll the limitations
period for the claims now before this Court. (Docs. 16, 17, 18). As a result, the sole issue is
whether the doctrine of equitable tolling saves Chavez’s concededly untimely petition.

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“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks
and citations omitted). Equitable tolling is appropriate “only in rare and exceptional
circumstances.” Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). At bottom, Chavez
blames his state post-conviction attorney for failing to present all grounds for collateral relief to
the New Mexico Supreme Court. If counsel had done so, then the instant claims would not have
expired before Chavez had the opportunity to return to the state court to exhaust them. And since
learning of counsel’s failure, Chavez says, he has acted diligently by immediately seeking relief
in the state court and refiling his petition here.
Although “serious misconduct” by post-conviction counsel may constitute an
extraordinary circumstance beyond a habeas petitioner’s control, a “garden variety claim of
excusable neglect” by the attorney does not satisfy the rare-and-exceptional-circumstance
standard for tolling. See Holland, 560 U.S. at 649. Whether tolling applies, therefore, depends on
specific facts showing more than mere attorney negligence. Here, Chavez has not carried his
burden. Merely blaming an attorney without “evidence demonstrating that despite[Chavez’s]
diligence, his attorney acted extraordinarily in failing [to present all Chavez’s alleged grounds
for habeas relief]” is insufficient. Santini v. Clements, 498 F. App'x 807, 810 (10th Cir. 2012).
Without details, the Court is left to speculate what communication Chavez had with his attorney
and what direction, if any, Chavez gave to post-conviction counsel. Chavez’s assignment of
blame does not excuse his failure to timely file the instant petition for habeas corpus. 1

1

The cases on which Chavez relies do not change the analysis. Both York v. Galetka, 314 F.3d 522 (10th Cir. 2003)
and Duncan v. Walker, 533 U.S. 167 (2001) addressed the sweeping changes Congress’s enactment of AEDPA
made and confusion created as to whether a pending federal habeas corpus case tolled the limitations period. York
addressed a perceived injustice as the federal courts transitioned to Duncan’s holding that a pending federal case did
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IT IS, THEREFORE, RECOMMENDED that Chavez’s petition for habeas corpus be
DISMISSED with prejudice as untimely.

____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS
WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT PARTY
WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO APPELLATE
REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.

not toll AEDPA’s year. Duncan’s rule has been firmly established for nearly two decades now and does not present
the same equity concerns in this case. In any event, neither York nor Duncan excuses a habeas petitioner from
providing the factual basis for the alleged attorney misconduct that is the claimed basis for equitable tolling.
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