Wiltse v. Smith et al

Filing 8

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DENYING 7 MOTION for Order. IT IS THEREFORE ORDERED that Petitioner's petition for writ of mandamus [Doc. 7 ] is DENIED; IT IS FURTHER ORDERED that Petitioner show cause in writing, within thirty (30) days of the date of entry of this order, why his § 2254 petition should not be Dismissed without prejudice under the Younger abstention doctrine. (gr)

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

ROBERT WILTSE,
Petitioner,
v.

No. 17-CV-01022-MV-KBM

KENNETH SMITH,
Respondent.

MEMORANDUM OPINION AND 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 Robert Wiltse’s Petition Under 28 U.S.C. §
2254 For Writ Of Habeas Corpus By A Person In State Custody, filed on October 10, 2017. [Doc.
1] Also before the Court is Petitioner’s letter “requesting the United States District Court assert
jurisdiction with a writ of superintend and control in the state habeas corpus in process for Case #
D-911-CR-21300052.” [Doc. 7] For the following reasons, Petitioner’s motion for a writ of
superintending control, which the Court liberally will construe as a petition for writ of mandamus,
will be denied and Petitioner will be ordered to show cause in writing, within thirty (30) days of the
date of entry of this order, why his § 2254 petition should not be dismissed without prejudice under
the Younger abstention doctrine.
On October 10, 2017, Petitioner filed the present § 2254 petition challenging his state
conviction and sentence in State v. Wiltse, D-911-CR-201300052. [Doc. 1] According to the
petition and the attached exhibits, Petitioner was convicted on January 27, 2016 for receiving
stolen property in violation of N.M. Stat. Ann. § 30-16-11 and sentenced to nine years in the
custody of the New Mexico Department of Corrections. [Id. at 1; Doc. 1-1 at 30-31] Petitioner

filed an appeal in the New Mexico Court of Appeals, which affirmed his conviction and sentence
on June 1, 2017. [Id. at 2; Doc. 1-2 at 19-27] Petitioner also filed a Petition For Writ of Certiorari,
which was denied by the New Mexico Supreme Court on July 13, 2017. [Id. at 2; Doc. 1-1 at 1-19]
On August 2, 2017, Petitioner timely filed a petition for writ of habeas corpus in the Ninth
Judicial District Court of the State of New Mexico. [Id. at 3; Doc. 1-1 at 21-29] Petitioner’s state
habeas proceeding is ongoing. [Docs. 5, 7] Indeed, on February 2, 2018 Petitioner filed a letter
asking the Court to issue a writ of superintending control over his state habeas corpus proceeding
because “[t]he obvious bias and willful mis-representation by the Office of the Chief Public
Defender of the State of New Mexico makes it desirable that a habeas corpus be conducted under
federal supervision.” [Doc. 7]
Although the New Mexico Constitution grants the New Mexico Supreme Court
superintending control over inferior courts, see N.M. Const. Art. 6, § 3, there is no such grant of
authority to the federal courts. The closest federal analogue to a writ of superintending control is a
petition for writ of mandamus. See 28 U.S.C. § 1651(a) (“The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.”); Barclaysamerican
Corp. v. Kane, 746 F.2d 653, 654 (10th Cir. 1984) (noting that the petition for writ of mandamus
“has been traditionally used only to confine an inferior court to the lawful exercise of its prescribed
jurisdiction or to compel it to exercise authority when it has a duty to do so”). It is well established,
however, that the federal courts “have no authority to issue such a writ to direct state courts or their
judicial officers in the performance of their duties.” Van Sickle v. Holloway, 791 F.2d 1431, 1436
n.5 (10th Cir. 1986) (internal quotation marks and citation omitted). Therefore, Petitioner’s letter,
which the Court liberally will construe as a petition for writ of mandamus, will be denied.
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Although Petitioner may have exhausted his state court remedies by presenting his claims
to the New Mexico Supreme Court in a petition for writ of certiorari on direct appeal, see Dever v.
Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994), the Court notes that a state habeas
proceeding currently is pending in the Ninth Judicial District of the State of New Mexico, which
raises the exact same issues presented in Petitioner’s § 2254 petition. [Compare Doc. 1 at 1-15,
with Doc. 1-1 at 21-29] The pending state habeas proceeding “might result in reversal of the
conviction, mooting the federal case.” Allen v. Friel, No. 2:05-CV-845 PGC, 2007 WL 128967, at
*1 (D. Utah Jan. 11, 2007) (internal quotation marks and citation omitted). Additionally, the
one-year limitation period for filing a § 2254 petition is tolled during the pendency of Petitioner’s
state habeas proceeding. See 28 U.S.C. § 2244(d)(2).
Pursuant to the United States Supreme Court’s holding in Younger v. Harris, 401 U.S. 37
(1971), federal courts are “obliged to abstain [from exercising jurisdiction] when a federal-court
judgment on the claim would interfere with an ongoing state proceeding implicating important
state interests.” D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1227-28 (10th Cir. 2004). The
Younger abstention doctrine is based “on notions of comity and federalism, which require that
federal courts respect state functions and the independent operation of state legal systems.” Phelps
v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Thus, absent extraordinary circumstances, a
federal court must abstain from exercising jurisdiction when:
(1) there is an ongoing state criminal, civil, or administrative
proceeding, (2) the state court provides an adequate forum to hear
the claims raised in the federal complaint, and (3) the state
proceedings involve important state interests, matters which
traditionally look to state law for their resolution or implicate
separately articulated state policies.

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Amantullah v. Colorado Bd. of Med. Exam’r, 187 F.3d 1160, 1163 (10th Cir. 1999). “Younger
abstention is non-discretionary; it must be invoked once the three conditions are met, absent
extraordinary circumstances.” Id.
All three conditions for Younger abstention appear to be met in this case: (1) there is an
ongoing state habeas proceeding in the Ninth Judicial District of the State of New Mexico; (2) the
state court provides an adequate forum for Petitioner’s habeas claims; and (3) the state has an
important interest in reviewing the constitutionality of Petitioner’s criminal conviction and
sentence. Cf. Fisher v. Whetsel, 142 Fed. App’x 337, 339 (10th Cir. July 20, 2005) (noting that a
state’s “important interest in enforcing its criminal laws through proceedings in its state courts
remains axiomatic”) (unpublished). Although Petitioner is unsatisfied with the legal representation
provided by the Office of the Chief Public Defender of the State of New Mexico in his state habeas
proceeding, [see Doc. 7], this dissatisfaction does not constitute an extraordinary circumstance
warranting an exception to the Younger abstention doctrine. See Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 435 (1982) (“So long as the constitutional claims of
respondents can be determined in the state proceedings and so long as there is no showing of bad
faith, harassment, or some other extraordinary circumstance that would make abstention
inappropriate, the federal courts should abstain.”); Phelps, 122 F.3d at 889 (noting that “[i]t is the
plaintiff’s ‘heavy burden’ to overcome the bar of Younger abstention by setting forth more than
mere allegations of bad faith or harassment”). Therefore, the Court will require Petitioner to show
cause in writing, within thirty (30) days of the date of entry of this order, why his § 2254 petition
should not be dismissed without prejudice under the Younger abstention doctrine. Failure to file a
timely written response may result in the dismissal of this action without prejudice without further
notice.
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IT IS THEREFORE ORDERED that Petitioner’s petition for writ of mandamus [Doc. 7] is
DENIED;
IT IS FURTHER ORDERED that Petitioner show cause in writing, within thirty (30) days
of the date of entry of this order, why his § 2254 petition should not be dismissed without prejudice
under the Younger abstention doctrine.

____________________________________
UNITED STATES DISTRICT JUDGE

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