Ordonez v. Smith et al

Filing 8

MEMORANDUM OPINION AND FINAL ORDER OF DISMISSAL by District Judge Kea W. Riggs dismissing with prejudice 1 Petition for 2254 Relief. (ve)

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

JEREMIAH ORDOÑEZ,
Petitioner,
vs.

No. CV 17-00997 KWR/KK

KEN SMITH,
Respondent.

MEMORANDUM OPINION AND FINAL ORDER OF DISMISSAL
THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2254
Proceedings in the District Court on the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus by a Person in State Custody filed by Petitioner Jeremiah Ordoñez. (Doc. 1). The Court
will dismiss the Petition, with prejudice, for failure to state a claim on which § 2254 relief can be
granted and as barred by the statute of limitations.
Petitioner, Jeremiah Ordoñez, filed his pro se Petition under 28 U.S.C. § 2254. (Doc. 1).
On December 31, 2019, the Court entered a Memorandum Opinion and Order dismissing
Petitioner Ordoñez’s claims without prejudice under Rule 4 of the Rules Governing Section 2254
Proceedings. (Doc. 6). The Court also granted Petitioner Ordoñez leave to file an amended
Petition within 30 days after entry of the Memorandum Opinion and Order. (Doc. 6 at 17-18).
The Court’s Memorandum Opinion and Order notified Petitioner Ordoñez that, if he did not file a
timely amendment to the Petition, the Court would enter a final dismissal of the case with
prejudice. (Doc. 6 at 17-18). Petitioner Ordoñez did not file an amended petition, did not respond

1

to the Court’s Memorandum Opinion and Order, and has not otherwise communicated with the
Court.
In its prior Memorandum Opinion and Order, the Court concluded that Petitioner Ordoñez
may have failed to fully exhaust his state court remedies, his claims are barred by the one-year
statute of limitations, and he is not eligible for § 2254 relief on the merits. (Doc. 6 at 1). The Court
noted that where a habeas petitioner presents a possible mixed petition of exhausted and
unexhausted claims, the Court should ordinarily require Ordoñez to pursue his available state
remedies. (Doc. 6 at 10-12). However, because his Petition is barred by the statute of limitations
and his allegations do not state a claim for § 2254 relief, it is unnecessary to reach the exhaustion
question and it would not serve the purposes of the exhaustion doctrine to bar consideration of his
claims. Granberry v. Greer, 481 U.S. 129, 131 (1987). See 28 U.S.C. § 2254(b)(2); Bartone v.
United States, 375 U.S. 52, 54 (1963). See also Harris v. Champion, 15 F.3d 1538, 1554–55 (10th
Cir. 1994); Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir.1991).
With respect to the statute of limitations, Petitioner’s New Mexico conviction and sentence
became final no later than June 2010, ninety days after the New Mexico Supreme Court issued its
denial of certiorari on direct appeal. Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). The 1year AEDPA limitation period expired by the end of June, 2011. 28 U.S.C. § 2244(d)(1)(A);
Locke, 237 F.3d at 1273. Ordoñez did not file any request for post-conviction relief in either state
or federal court until his state Petition for Writ of Habeas Corpus in October 19, 2016, five years
after the 1-year federal limitation period expired. (Doc. 6 at 12-13). The allegations of his
Petition, the attachments, and the state court record do not demonstrate that Petitioner diligently
pursued his claims or demonstrate that the failure to timely file was caused by extraordinary
circumstances beyond his control. Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir. 2003).

2

Petitioner’s request for § 2254 relief was not filed within one year after his state conviction became
final and his claims are time-barred by the § 2244(d) statute of limitations. Miller v. Marr, 141
F.3d 976, 977-78 (10th Cir. 1998).
Last, the Court determined that Petitioner’s § 2254 claims fail on the merits. (Doc. 6 at 1315). Petitioner’s self-defense allegations are insufficient to state any claim for habeas corpus relief.
The allegations fail to show how lack of consideration or erroneous determination of his selfdefense argument resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States or resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1) and (2);
Wilson v. Sellers, 584 U.S. ___, 138 S.Ct. 1188, 1192 (2018).
Similarly, the competency and ineffective assistance of counsel claims advanced by
Ordoñez fail to state a claim for relief under § 2254. The issues raised by Petitioner Ordoñez in
this proceeding are identical to the issues he raised in his state direct appeal and habeas corpus
proceeding. (Doc. 1 at 16-20; State v. Ordonez, 2010 WL 3997930 at *1-2). Neither decision
involved any question of federal law, and Petitioner Ordoñez does not articulate how the state
court’s rulings were violative of the constitution or federal law. This Court concluded that the
state court decisions were a reasonable application of law and were based on a reasonable
determination of the facts in light of the evidence presented in the State court proceeding. 28
U.S.C. § 28 U.S.C. § 2254(d)(1) and (2); Harrington v. Richter, 562 U.S. 86, 102 (2011); Wilson
v. Sellers, 138 S.Ct. at 1192.
When the Court dismisses a pro se Petition, the Court is to allow Petitioner an opportunity
to amend the complaint to remedy defects in his pleading. Reynoldson v. Shillinger, 907 F.2d 124,

3

126 (10th Cir. 1990); Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). Petitioner Ordoñez
was given the opportunity to amend his Petition and has failed to do so within the time allowed by
the Court. Therefore, the Court will now dismiss this case, with prejudice, under Rule 4 of the
Rules Governing Section 2254 Proceedings on the grounds that his claims are barred by the oneyear statute of limitations and he is not eligible for § 2254 relief on the merits. Hall v. Bellmon,
935 F.2d at1109-10.
IT IS ORDERED that the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus
by a Person in State Custody filed by Petitioner Jeremiah Ordoñez (Doc. 1) is DISMISSED with
prejudice and judgment will be entered.

4