Hinzo v. Franco

Filing 12

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson GRANTING 5 Application to Proceed In Forma Pauperis, DENYING 7 Motion Requesting Status of Habeas Corpus Petition; DENYING 9 Motion for Summary Disposition; and DENYING 11 Motion for Order granting Motion Requesting Status of Habeas Corpus Petition and Motion for Summary Disposition. Amended Petition for Habeas Corpus 4 is DISMISSED WITHOUT PREJUDICE. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________
JASON P. HINZO,
Petitioner,
v.

No. 1:17-cv-1049 WJ-CG

GERMAN FRANCO, Warden
Respondent.
MEMORANDUM OPINION AND ORDER
DISMISSING HABEAS PETITION
Before the Court is Jason Hinzo’s Amended Petition for Writ of Habeas Corpus (Doc. 4).
Also before the Court are Hinzo’s motions to proceed in forma pauperis and for an expedited/
summary disposition (Docs. 5, 7, 9, and 11). Hinzo asks the Court to modify his term of parole
and/or direct his former warden to reimburse earned good-time credits. Based on Hinzo’s
financial information, the Court finds he lacks sufficient funds to pay the filing fee and will grant
the in formal pauperis motion (Doc. 5). See 28 U.S.C. § 1915(a). However, having reviewed
the amended petition under Habeas Corpus Rule 4, the Court will dismiss this action without
prejudice.
Hinzo is serving a twenty-year sentence for aggravated assault on a peace officer and
possession of narcotics. The state court entered judgment on the conviction and sentence on
August 28, 2007. Hinzo filed a direct appeal and sought state habeas relief, but he was
ultimately unsuccessful. In 2013, Hinzo filed a federal 28 U.S.C. § 2254 petition claiming
ineffective assistance of counsel, due process violations, and improper sentence enhancements.
(Doc. 1 in 1:13-cv-228 LH-SMV). The Court (Hon. C. Leroy Hansen) dismissed the § 2254

petition as untimely.
In late 2017, Hinzo filed another habeas petition. The form did not indicate whether he
wished to proceed under 28 U.S.C. §§ 2254 or 2241. He asked the Court to correct his
“judgment and sentence … concerning parole, to allow for proper credit of earned good time.”
(Doc. 1, p. 2). By a Memorandum Opinion and Order entered November 6, 2017, the Court
dismissed the petition and granted leave to amend. The Court directed Hinzo to clarify three
issues:
(A) Whether he was challenging the validity of his sentence pursuant to 28 U.S.C. § 2254
or attacking its execution under 28 U.S.C. § 2241;
(B) Why Hinzo believes his good time credits were miscalculated; and
(C) The identity of Hinzo’s current custodian/warden.
Such requirements are consistent with the minimum pleading standards set forth in Habeas Rule
2. That rule requires a petition to name the current warden; “specify all grounds for relief;”
“state the facts supporting each ground;” and “state the relief requested.” Habeas Corpus Rule
2(a) – (c).1
Hinzo filed an amended petition on the § 2241 form, but it did not contain the above
information. The amended petition again indicates Hinzo is challenging both the validity and

“Habeas Corpus Rule” refers to the Rules Governing Section 2254 Cases in the United States District
Courts, effective February 1, 1997 and amended on February 1, 2010. The Court, in its discretion, can
also apply those rules to a § 2241 petition. See Habeas Corpus Rule 1(b) (“The district court may apply
any or all of these rules to [other types of] habeas corpus petitions”); Boutwell v. Keating, 399 F.3d 1203,
1211 n. 2 (10th Cir. 2005) (citing Rule 1(b), and holding the district court acted within its discretion by
applying Section 2254 Rules to a section 2241 petition); McFarland v. Scott, 512 U.S. 849, 114 (1994)
(citing Rule 4, and noting courts are authorized to summarily dismiss any habeas petition that appears
legally insufficient on its face).
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execution of his sentence. New Mexico warden German Franco is named as the Respondent,
while the petition indicates Hinzo is incarcerated in South Dakota. The amended petition also
fails to explain the circumstances surrounded the denial or revocation of good time credits.
Hinzo attempts to provide additional explanation in his motion for summary disposition (Doc. 9).
He notes he has been transferred back to New Mexico, and appears to waive any challenge
under § 2254. Even if the Court were to liberally construe the motion as another amendment to
the habeas petition, Hinzo still fails to identify his current custodian. He also fails to
sufficiently explain why he believes his former custodian (German Franco) improperly revoked
good time credits, or how any alleged reordering of his consecutive sentences impacted those
credits. Without this information, the Court cannot order an answer to the petition. See United
States v. Harris, 579 Fed. App’x 657, 661–62 (10th Cir. 2014) (District courts are not required to
“coble together” related documents in a habeas proceeding “with the aim of weaving together a
substantive argument for relief”).
Based on the foregoing, the Court will dismiss the amended petition (Doc. 4) without
prejudice and deny the motions seeking expedited or summary relief (Docs. 7, 9, and 11).
Hinzo may refile his claims, as “Section 2241 does not limit the number of applications a
prisoner may bring.” Kirkland v. English, 2018 WL 6266132,*2 (10th Cir. Nov. 30, 2018)
(citing 28 U.S.C. § 2241)). If Hinzo does file a new petition, he is again warned that he must
include the name of his current warden as the party respondent. The fact that German Franco
revoked the credits is irrelevant; the only person who can remedy the alleged violation is the
current warden. See Rumsfeld v. Padilla, 452 U.S. 426, 442–43 (2004); Habeas Corpus Rule
2(a). Further, to the extent Hinzo is having trouble articulating his argument, it may be helpful
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to attach any underlying state court documents to a new petition.
It is ORDERED that Hinzo’s application to proceed in forma pauperis (Doc. 5) is
GRANTED.
It is FURTHER ORDERED that Hinzo’s remaining motions for expedited or summary
relief (Docs. 7, 9, and 11) are DENIED.
It is FINALLY ORDERED that Hinzo’s Amended Petition for Habeas Corpus (Doc. 4)
is DISMISSED WITHOUT PREJUDICE.

_______________________________________
CHIEF UNITED STATES DISTRICT JUDGE

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