Gamez v. Fajardo et al

Filing 7

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing with prejudice Petitioner's habeas corpus petition petition under 28 U.S.C. § 2254 Doc. 1 , supplemented by Doc. 6 , and denying a certificate of appealability. (baw)

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

JOSE GAMEZ,
Petitioner,
v.

No. 1:18-cv-00079 JCH/KRS

DANIEL FAJARDO, Warden,
ATTORNEY GENERAL FOR
THE STATE OF NEW MEXICO,
Respondents.
MEMORANDUM OPINION AND ORDER
Before the Court is Jose Gamez’s habeas corpus petition under 28 U.S.C. § 2254 (Doc. 1,
supplemented by Doc. 6). Gamez asks the Court to vacate his state murder conviction based on,
inter alia, ineffective assistance of counsel. Having reviewed the matter sua sponte under Habeas
Corpus Rule 4, the Court will dismiss the petition as untimely.
I. Background
In February 2010, Gamez pled guilty to second degree murder in New Mexico’s Seventh
Judicial District Court, case no. D-725-CR-2008-00089.1 He was sentenced to 12 years
imprisonment. See Doc. 1 at 1. Judgment on his conviction and sentence was entered on March
1, 2010. Id.; Final Judgment in Case No. D-725-CR-2008-00089. In accordance with the plea
agreement, Gamez did not file an appeal. Id.; Doc. 6 at 1. The Judgment therefore became final
no later than April of 2010, when the appeal period expired. See Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) (explaining that a petitioner’s judgment becomes final for purposes of § 2254

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The Court took judicial notice of the state court criminal 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(10th Cir. 2003) (unpublished) (finding that a state district court’s docket sheet was an official court record subject to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).

when the time for seeking state appellate review expires); NMRA, Rule 12-201 (providing that a
notice of appeal must be filed within 30 days after entry of the judgment).
About six years later in April 2016, Gamez filed a state habeas corpus petition. See NTC:
Notice in case no. D-725-CR-2008-00089. The state court denied the petition on June 6, 2016,
and the New Mexico Supreme Court (“NMSC”) denied his petition for writ of certiorari on July 26,
2017. See Doc. 1 at 2; NMSC case no. S-1-SC-35980. On January 24, 2018, Gamez filed the
federal § 2254 petition.
II. Discussion
Petitions for a writ of habeas corpus by a person in state custody must generally be filed
within one year after the defendant’s conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The
one-year limitation period can be extended:
(1)

While a state habeas petition is pending, § 2244(d)(2);

(2)

Where unconstitutional state action has impeded the filing of a federal habeas

petition, § 2244(d)(1)(B);
(3)

Where a new constitutional right has been recognized by the Supreme Court, §

2244(d)(1)(C); or
(4)

Where the factual basis for the claim could not have been discovered until later, §

2244(d)(1)(C).
The petition reflects the one-year period expired no later than April, 2011 (i.e., one year the
Judgment became final), and Gamez filed his § 2254 petition over six years later on January 24,
2018. By a Memorandum Opinion and Order entered February 9, 2018, the Court directed Gamez
to show cause why his § 2254 petition should not be dismissed as untimely. See Doc. 2. Gamez
filed a Response on February 22, 2018. See Doc. 4. He notes: “I did believe the one-year
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limitation period … restart[ed] after my filing/decision of the State Habeas [Court]….” Id. at 1.
However, as the Court explained in its previous Order, “[a] state court filing submitted after the …
[one-year] deadline does not toll the limitations period.” Gunderson v. Abbott, 172 Fed. App’x.
806, 809 (10th Cir. 2006) (unpublished). See also Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th
Cir. 2001) (noting the petitioner could not taking advantage of tolling “for time spent in state
post-conviction proceedings because his applications for post-conviction relief were not filed until
after … the end of the limitations period.…”). Gamez is therefore not entitled to relief under §
2244(d)(2).
The Response also appears to seek equitable tolling. Gamez argues: (1) the Federal Public
Defender would not assist with the habeas petition; (2) he had limited access to education, research
materials, and the applicable rules of procedure; and (3) the Federal Court would not provide
information about how to file a § 2254 petition. See Doc. 4 at 1-2. Equitable tolling “is only
available when an inmate diligently pursues his claims and demonstrates that the failure to timely
file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000). “[A]n inmate bears a strong burden to show specific facts to support
his claim of extraordinary circumstances….” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008). He must provide “specificity regarding the alleged lack of access and the steps he took to
diligently pursue his federal” petition. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
The Tenth Circuit has held that the lack of counsel is “not an extraordinary circumstance …
because there is no federal constitutional right to counsel in collateral proceedings.” Weibley v.
Kaiser, 50 Fed. App’x 399, 403 (10th Cir. 2002). See also Marsh, 223 F.3d at 1220 (lack of timely
assistance from prison legal access attorney insufficient to support equitable tolling). Mere
allegations “of insufficient access to relevant law … are [similarly] not enough to support equitable
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tolling.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). See also Miller, 141 F.3d at 978
(“It is not enough to say that the … facility lacked all relevant statutes and case law or that the
procedure to request specific materials was inadequate”); Parker v. Jones, 2008 WL 63304 (10th
Cir. 2008) (holding mere allegations regarding lack of access to library cannot support equitable
tolling). Gamez has not explained what, if any, resources he requested, nor has he alleged that he
tried to obtain the resources prior to the expiration of the one-year limitation period. His claims
regarding lack of legal assistance and materials therefore fail.
Finally, it is well established that the Court cannot give legal advice. See Garrett v. Selby,
Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (noting the “court cannot take on the
responsibility of serving as the litigant’s attorney”). Equitable tolling is therefore not warranted
based on the lack of assistance from the Court, and the petition must be dismissed as untimely.
See 28 U.S.C. § 2244(d)(1)(A). The Court will also deny a certificate of appealability under
Habeas Corpus Rule 11, as Gamez failed to make a substantial showing that he has been denied a
constitutional right.
IT IS ORDERED that Jose Gamez’s habeas corpus petition under 28 U.S.C. § 2254 (Doc.
1, supplemented by Doc. 6) is DISMISSED WITH PREJUDICE; a certificate of appealability is
DENIED; and judgment will be entered.

____________________________________
UNITED STATES DISTRICT JUDGE

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