Grado v. Lucero et al

Filing 21

ORDER ADOPTING 15 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez; DENYING AS MOOT 12 Motion to Appoint Counsel; DENYING AS MOOT 14 ORDER on Motion for Order; DENYING AS MOOT 20 ORDER on Motion for Order. See Order for Specifics. (gr)

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

GABRIEL H. GRADO,
Petitioner,
No. 1:17-cv-00984-MV-KRS
v.
ALICIA LUCERO, Warden, and
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
Respondents.
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION, DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS WITH PREJUDICE, AND
DENYING MOTIONS AS MOOT
THIS MATTER comes before the Court on Petitioner Gabriel Grado’s objections to
Magistrate Judge Kevin Sweazea’s Proposed Findings and Recommend Disposition (“PFRD”)
(Doc. 16). In the PFRD, the magistrate judge concluded that Grado’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 is barred by the one-year statute of limitation contained in
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. 2244(d)(1). (Doc. 15).
Grado objects and asserts the statute of limitation was tolled because of on-going, state-court
proceedings, his diligence in pursuing his claims, and his good-faith reliance on his appointed
post-conviction counsel in the state court. Having reviewed the PFRD de novo in light of
Grado’s specific challenges, see 28 U.S.C. § 636(b), the Court overrules Grado’s objections,
adopts the magistrate judge’s PFRD, and dismisses the petition with prejudice.
BACKGROUND
Grado filed the instant petition on September 26, 2017. Grounds one and two of his
application attack the voluntariness of statements he made to police after his biological mother,
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but not his custodial guardian, escorted him to the Eunice, New Mexico police department and
signed an advisement-of-rights form as Grado’s parent. Grado’s other two grounds for relief are
part and parcel of this due process challenge: Grado’s post-conviction counsel in the state court
should have presented documentary proof of the lack of “custodial guardianship” during an
evidentiary hearing; and the state court erroneously failed to grant relief because of Grado’s
mother’s misconduct.
Although Grado’s two murder convictions became final over a decade ago, Grado first
learned that his biological mother was not his legal guardian on February 6, 2012. On that day,
Grado received records from the New Mexico Child Youth and Families Department (“CYFD”)
that showed, as of a June 22, 1996 order, Grado was a ward of the state and presumably
remained so when his mother signed the form at issue and Grado made inculpating statements to
police. Judge Sweazea took February 6, 2012 as the triggering date for the statute of limitations
for Grado’s claims based on subsequently discovered facts. See 28 U.S.C. § 2241(d)(1)(D).
Using this date, the magistrate judge concluded that, absent tolling, Grado had until February 6,
2013 to seek habeas relief in federal court. Grado, however, first raised the issue on July 15,
2015 in ongoing post-conviction proceedings in state court by filing a “supplemental reply.”
Because Grado did not offer a cognizable justification for the delay, the magistrate judge
determined that neither statutory nor equitable tolling saved Grado’s untimely Section 2254
petition in this Court.
DISCUSSION
Grado does not challenge the magistrate judge’s calculations or recitation of the facts.
Instead, Grado objections, liberally construed, argue for statutory and equitable tolling. As for
statutory tolling, Grado emphasizes ongoing state court proceedings that began with an

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application for post-conviction relief filed in 2010 and amended in April 2012. This assertion
could be read as seeking “relation back”— the pleading in which Grado first raised his mother’s
parental status should be considered filed as of the date of the amended application in state court,
which would have served to stop AEDPA’s clock. In terms of equity, Grado asserts that the
many years he waited to receive a ruling from the state courts in post-conviction proceedings
were beyond his control and illustrate his diligence.
Statutory Tolling
The Tenth Circuit has not addressed whether a new theory for post-conviction relief
submitted to the state court after AEDPA’s limitation period has expired, but in an ongoing
collateral case that was commenced before expiration, relates back to the date of commencement
and triggers tolling under Section 2244(d)(2). See 28 U.S.C. § 2244(d)(2) (“The time during
which a properly filed application for State post-conviction or other collateral review . . . is
pending shall not be counted toward any period of limitation”). If relation back applies, Grado’s
federal petition would be timely since it was filed within a year after the New Mexico Supreme
Court denied review of Grado’s amended post-conviction application. Nonetheless, the Court
concludes statutory tolling is inapplicable here.
First, post-conviction attacks in New Mexico are governed by criminal rules not civil
procedure. See N.M. Rule Ann. 5-802; Allen v. Lemaster, 267 P.3d 806, 810 (N.M. 2012)
(explaining that “[h]abeas corpus proceedings under Rule 5-802 . . . are in every real sense a
continuation of a defendant’s criminal case . . . and are no longer appropriately characterized as
civil proceedings to which the ‘Rules of Civil Procedure’ apply”) (citation omitted). “Relation
back” is a creature of civil procedure. See N.M. R. Ann. 1-015(C) Rules of Civil Procedure for

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the (New Mexico) District Courts. As a result, it is unclear what mechanism of state law would
allow for relation back.
Second, assuming the New Mexico Supreme Court were to import Rule 1-015(C) into
post-conviction criminal procedure, new claims only relate back where they implicate “the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
Here, the voluntariness of Grado’s inculpating statements does not stem from Grado’s counsel’s
conduct at trial, the original basis for his 2010 application in state court as amended in 2012.
(Doc. 9-4, at 70-89; 92-108). In those filings, Grado asserted that his trial counsel failed to
meaningfully pursue mitigation in pretrial investigation, and at trial and sentencing. Grado
pointed to a history of behavioral problems and abuse and argued his trial attorney should have
presented evidence tending to show he lacked the mens rea for first-degree murder, instead of the
“all-or-nothing defense” upon which counsel settled. In short, Grado’s Fifth-Amendment
challenge to the voluntariness of his statements is unconnected, factually or legally, to the stated
bases in his application for post-conviction relief.
Finally, although Grado’s application was filed, and amended, in the state court before
the statute ran on his parental-rights theory, the specific relief sought in the application was
premised on constitutional challenges that had already expired under federal law. See Moore v.
Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (“While a ‘properly filed’ application for postconviction relief tolls the statute of limitations, it does not reset or restart the statute of
limitations once the limitations period has expired.”). Under AEDPA, claims may have different
limitation periods depending upon when the “factual predicate” for the specific challenge was
discovered. See 28 U.S.C. § 2244(d)(1)(A) & (D). In this case, the facts underlying the claims
alleged in Grado’s application, ineffective assistance of trial counsel, were the failure of Grado’s

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attorney to investigate and present a mitigation defense at trial and during sentencing. Grado
knew of the factual predicate—the failure of counsel to present mitigating evidence related to his
past abuse and behavioral problems—at the time of trial and sentencing.
For this predicate, AEDPA’s year commenced when Grado’s convictions became final.
See 28 U.S.C. §2244(d)(1)(A) &(d)(2) (statute of limitations for claims not based on newly
discovered facts runs from “the date on which the judgment became final by the conclusion of
direct review or the expiration of time for seeking such review” but subject to tolling when “a
properly filed application for State post-conviction relief . . . is pending”). As the magistrate
judge calculated the dates, Grado’s federal habeas petition for Grado’s challenges not related to
the CYFD documents was due on or before December 23, 2005, a year from when Grado’s
convictions became final and after the state court disposed of two properly filed collateral
challenges. Because a successive state-court application for post-conviction relief cannot revive
an already expired statute of limitation, Grado’s 2015 “supplemental reply” raising the issue of
his mother’s custodial status in the state court, even if it did relate back, could not render Grado’s
federal petition timely.
Equitable Tolling
“Equitable tolling of the limitations period is available when an inmate diligently pursues
his claims and demonstrates that the failure to timely file was caused by extraordinary
circumstances beyond his control.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).
As the Tenth Circuit has explained, “equitable tolling is appropriate when a prisoner is actually
innocent, when an adversary’s conduct—or other uncontrollable circumstances—prevents a
prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a

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defective pleading during the statutory period.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) (internal quotation marks and citations omitted).
Here, Grado recites the lengthy procedural history of his various applications for postconviction relief in the state court. He also explains he relied in good faith on his attorney. None
of these contentions, however, establish external, uncontrollable circumstances that impeded him
from raising his mother’s alleged lack of custodial rights, either in this Court or the state district
court before the expiration of the one-year statute of limitations. Grado had the “strong burden to
show specific facts to support [a] claim of extraordinary circumstances and due diligence.” Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted). He did not meet that burden
in this case, and the Court overrules his objection.
CONCLUSION
For the reasons stated above, the Court overrules Grado’s objections to the magistrate
judge’s PFRD.
IT IS, THEREFORE, ORDERED that Petitioner’s objections to the magistrate judge’s
PFRD (Doc. 16) are OVERRULED and the PFRD (Doc. 15) is adopted as an order of the Court.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (Doc. 1) is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner’s motion to appoint counsel (Doc. 12) and
motion for a ruling (Doc. 1) are DENIED as moot.
IT IS FURTHER ORDERED that Petitioner’s motions for ruling (Docs. 14 & 20) are
DENIED as moot.
________________________________
HONORABLE MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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