Hinzo v. Franco

Filing 3

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DISMISSING any claims under 28 U.S.C. § 2254 without prejudice for lack of jurisdiction. Petitioner is granted thirty (30) days to file an amended petition under 28 U.S.C. § 2241 on the Court's official form and either prepay the $5.00 filing fee, or alternatively, file an application to proceed in forma pauperis. (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 Petition for Writ of Habeas Corpus (Doc. 1) filed
October 19, 2017. Hinzo is incarcerated and appears pro se. He asks the Court to modify his
state court sentence to reflect earned good-time credits. Having reviewed the record, arguments,
and relevant law, the Court will dismiss the Petition but grant leave to amend certain claims.
BACKGROUND
On May 25, 2007, Hinzo was convicted by a jury of aggravated assault on a peace officer
and possession of narcotics in New Mexico’s Third Judicial District Court, case no.
D-307-CR-2006-01405. The state court sentenced him to twenty years imprisonment, followed
by a two year term of parole. Judgment on the conviction and sentence was entered 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.
(Docs. 28 and 29 in 1:13-cv-228 LH-SMV). Hinzo now brings a new habeas petition asking that
his state court “judgment and sentence be corrected concerning parole, to allow for proper credit of
earned good time.” (Doc. 1, p. 2). He also appears to argue that Warden German Franco
incorrectly calculated his good time credits under N.M.S.A. 1978 § 33-2-34.
DISCUSSION
It is difficult to tell whether Hinzo is challenging the validity of his sentence pursuant to 28
U.S.C. § 2254 or attacking its execution under 28 U.S.C. § 2241. To the extent Hinzo again seeks
to disturb the conviction or sentence under § 2254, the Court cannot grant any relief. A “district
court ha[s] no jurisdiction to decide [a] successive § 2254 petition without authority from the court
of appeals.”

Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (citing 28 U.S.C. §

2244(b)(3)(A)). When a successive § 2254 petition is filed without such authority, the district
court may transfer the matter to the Tenth Circuit “if it determines it is in the interest of justice to
do so under § 1631, or it may dismiss the motion or petition for lack of jurisdiction.” In re Cline,
531 F.3d 1249, 1252 (10th Cir. 2008). Factors to consider in evaluating the proper course of
action include:
[W]hether the claims would be time barred if filed anew in the proper forum,
whether the claims alleged are likely to have merit, and whether the claims were
filed in good faith or if, on the other hand, it was clear at the time of filing that the
court lacked the requisite jurisdiction.
Id. at 1251.
The Court already determined that, because judgment on Hinzo’s conviction was entered
in 2007, his § 2254 claims are time-barred. His instant § 2254 petition does not provide grounds
to restart the clock, such as a new rule of constitutional law or newly discovered facts that
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demonstrate innocence by clear and convincing evidence. See 28 U.S.C. § 2244(b)(2). The
Court will therefore dismiss any § 2254 claims for lack of jurisdiction and deny a certificate of
appealability.
To the extent Hinzo challenges the execution of his sentence under § 2241, the current
petition is also insufficient to justify relief. It is unclear why Hinzo believes Warden Franco
miscalculated his good time credits or whether the warden is even the proper Respondent. The
petition reflects Hinzo is confined at the Penitentiary of New Mexico, while his address reflects he
is housed at the Mike Durfee State Prison in South Dakota. Hinzo must clarify this apparent
discrepancy, since litigation under § 2241 must be brought in the district with jurisdiction over the
prisoner’s current custodian. See Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004).
The Court will allow Hinzo an opportunity to file an amended § 2241 petition on the proper
form, if he wishes to pursue such relief. Hinzo must also either prepay the $5.00 filing fee for a §
2241 action or file an application to proceed in forma pauperis. If Hinzo fails to timely amend
and address the filing fee within thirty (30) days of entry of this Memorandum Opinion and Order,
the Court will dismiss the case without further notice.
It is THEREFORE ORDERED that to the extent Hinzo’s habeas petition raises any
claims under 28 U.S.C. § 2254, such claims are DISMISSED without prejudice for lack of
jurisdiction; and a certificate of appealability is DENIED.
It is FURTHER ORDERED that the remainder of the habeas petition is DISMISSED;
but Hinzo is granted thirty (30) days to file an amended petition under 28 U.S.C. § 2241 on the
Court’s official form and either prepay the $5.00 filing fee, or alternatively, file an application to
proceed in forma pauperis.
It is FURTHER ORDERED that the Clerk’s Office is directed to mail to Hinzo, together
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with a copy of this Order, two copies of the form Petition Under 28 U.S.C. § 2241 for a Writ of
Habeas Corpus and form Application to Proceed in District Court Without Prepaying Fees or
Costs.
SO ORDERED.

____________________________________
UNITED STATES DISTRICT JUDGE

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