Kester v. Attorney General of the State of New Mexico

Filing 7

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DISMISSING 1 Clinton Kester's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus Petition for 2254 Relief without prejudice. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________
CLINTON KESTER,
Petitioner,
vs.

No. 1:17-cv-1229 WJ/LF

ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO,
Respondent.
MEMORANDUM OPINION AND ORDER
DISMISSING HABEAS PETITION
Before the Court is Clinton Kester’s habeas corpus petition under 28 U.S.C. § 2254 (Doc.
1). Kester challenges a state court order revoking his probation and suspended sentence. For the
reasons below, the Court will dismiss the Petition without prejudice for failure to exhaust available
state court remedies.
BACKGROUND
Kester’s revocation proceeding stemmed from a 2014 conviction for larceny and
shoplifting in violation of N.M.S.A. 1978, §§ 30-16-01 and 30-16-20. See State of New Mexico v.
Kester, D-1116-CR-2013-00790. 1

He was originally sentenced to two and a half years

imprisonment, followed by one year of parole. The sentence was suspended except for time
served. On March 10, 2016, the State Court revoked Kester’s probation for failing to report
negative police contact and sentenced him to five years and six months imprisonment. Kester
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The Court took judicial notice of the state court docket. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th
Cir. 2007) (courts have “discretion to take judicial notice of publicly-filed records ... and certain other courts
concerning matters that bear directly upon the disposition of the case at hand”); Stack v. McCotter, 2003 WL 22422416
(10th Cir. 2003) (unpublished) (finding that a state district court’s docket sheet was an official court record subject to
judicial notice under Fed. R. Evid. 201).

filed a direct appeal of the revocation order on April 6, 2016. See New Mexico Court of Appeals
(“NMCA”) Case No. 35,524.
On December 14, 2017 - while the appeal was pending - Kester filed the federal § 2254
petition. He asserts there was insufficient evidence to establish a willful probation violation; the
probation officer failed to give him a 48 hour grace period before taking action; and he was denied
due process in connection with the revocation proceeding. The petition reflects Kester raised the
willful-violation arguments in the direct appeal, but he did not raise any arguments pertaining to the
asserted grace period or due process violations (Doc. 1).
DISCUSSION
Pursuant to 28 U.S.C. § 2254(b)(1)(A), state prisoners must exhaust all available State
Court remedies before the Federal Court can rule on any § 2254 claims. “The exhaustion
requirement is satisfied if [each] … federal issue has been properly presented to the highest state
court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kansas
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Accordingly, the Federal Court generally
cannot rule on a § 2254 petition where, as here, the habeas claims are still pending in the state
appellate court.

See Carbajal v. Lynn, 640 Fed. App’x 811, 813 (10th Cir. 2016) (“[N]o

reasonable jurist could debate the district court’s conclusion that it would be premature to address
[petitioner’s federal § 2254] … challenge to his Denver County convictions while his direct appeal
remains pending.”); Miller v. Glanz, 331 Fed.Appx. 608, 610 (10th Cir. 2009) (unpublished)
(explaining that “a collateral federal attack on the conviction via habeas would still appear to be
premature while direct appeal is pending in state court”).
By an order entered December 26, 2017, the Court directed Kester to show cause why his §
2254 petition should not be dismissed for failure to satisfy the exhaustion requirement (Doc. 4). In
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response, he complains the appeal has been pending since April of 2016; any state appellate
decision will “influence” the Federal Court; and he is entitled to habeas relief on the merits (Doc.
6). The latter arguments are overruled. The merits of Kester’s habeas claims are irrelevant to
whether he complied with the filing prerequisites.

Further, the habeas statute specifically

contemplates that any federal review would be preceded by an unfavorable state appellate ruling.
See 28 U.S.C. § 2254(b)(1)(A). In enacting that statute, Congress placed its confidence in Federal
Courts to conduct an independent, unbiased review of the habeas claims.
The Court construes Kester’s argument about timing as a request to excuse the exhaustion
requirement pursuant to 28 U.S.C. § 2254(b)(1)(B). The requirement can only be excused where
“exhaustion would have been futile because either ‘there is an absence of available State corrective
process’ or ‘circumstances exist that render such process ineffective to protect the rights of the
applicant.’” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting 28 U.S.C. §
2254(b)(1)(B)). The Tenth Circuit has held that a state court’s delay in adjudicating a direct
criminal appeal beyond two years gives rise to the presumption that exhaustion is futile, absent
constitutionally sufficient justification by the state. See Harris v. Champion, 15 F.3d 1538, 1556
(10th Cir. 1994). Before the two-year mark, however, the Tenth Circuit has been hesitant to allow
a petitioner to abandon their direct appeal. See, e.g., Davis v. Cline, 525 Fed. App’x 658 (10th Cir.
2013) (reserving the question of futility where the criminal appeal had been pending for “slightly
less” than two years).
Kester’s appeal has been pending for about 21 months.

However, the NMCA has

completed significant work during that time, issuing a proposed summary disposition and
assigning the case to the general calendar.

See “Appeal Summary Calendar” in

D-1116-CR-2013-00790. Under these circumstances, requiring Kester to complete the appeal
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process would not be futile. See Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981) (“We will
not excuse a failure to exhaust state remedies unless it is affirmatively shown that resort to them
would be useless.”). Further, even if the Court arrived at the opposite conclusion, Kester has not
attempted to exhaust his claims regarding the grace period or due process violations. The Petition
is therefore still subject to dismissal, because “federal district courts may not adjudicate mixed
petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.”
Rhines v. Weber, 544 U.S. 269, 274-276 (2005). See also Fairchild v. Workman, 579 F.3d 1134,
1156 (10th Cir. 2009) (discussing the discretionary options for dealing with mixed petitions, which
include staying the proceedings and dismissing the case without prejudice).
Based on the foregoing, the Court will dismiss Kester’s Petition without prejudice for
failing to exhaust state court remedies. See 28 U.S.C. § 2254(b)(1)(B). The Court will also deny
a certificate of appealability under Habeas Corpus Rule 11(a), as Kester has failed to make a
substantial showing that he has been denied a constitutional right.
IT IS ORDERED that Clinton Kester’s Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus (Doc. 1) is dismissed without prejudice; a certificate of appealability is denied;
and judgment will be entered.
SO ORDERED.

____________________________________
UNITED STATES DISTRICT JUDGE

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