Aragon v. Bowen et al

Filing 17

ORDER granting in part 14 Motion to Extend and denying 15 Motion to Appoint Counsel by Chief Magistrate Judge Carmen E. Garza. Petitioner is directed to show cause within thirty days of entry of this Order why his Petition should not be dismissed as untimely. (ag)

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

MARCOS ARAGON,
Petitioner,
v.

CV No. 18-190 KWR/CG

FNU BOWEN, et al,
Respondents.

MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
THIS MATTER is before the Court on Petitioner Marcos Aragon’s Amended 28
U.S.C. § 2254 Habeas Corpus Petition (“Petition”), (Doc. 16), filed March 16, 2020;
Petitioner’s Motion to Extend Time, (Doc. 14), and Motion to Appoint Counsel, (Doc.
15). Mr. Aragon asks the Court to vacate his state convictions for second degree
murder. The Court, having reviewed the matter sua sponte will accept Mr. Aragon’s
Petition as timely; deny the Motion to Appoint Counsel; and require Mr. Aragon to show
cause why his Petition should not be dismissed as time barred.
I. Procedural Background
The procedural history in this case is complex. To better understand the citations
in the Petition, the Court took judicial notice of Mr. Aragon’s state court criminal dockets,
Case Nos. D-D-1215-CR-2010-00206; S-1-SC-36807; and S-1-SC-34443. See Mitchell
v. Dowling, 672 Fed. App’x 792, 794 (10th Cir. 2016) (unpublished) (Habeas courts may
take “judicial notice of the state-court docket sheet to confirm the date that each [state]
motion was filed”); United States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir. 2010)
(recognizing a court may take judicial notice of docket information from another court).

In 2011, Mr. Aragon pled no contest to two counts second degree murder in
violation of N.M.S.A. §§ 30-2-1(B) and 30-1-13. (Doc. 16 at 1). The state court
sentenced him to thirty years imprisonment, ten of which were suspended. Id. Judgment
on the conviction was entered November 17, 2011. See Judgment and Sentence in
Case No. D-1215-CR-2010-00206. Mr. Aragon did not initially appeal. However, on
December 5, 2011, he filed the first of several motions to reconsider his sentence
and/or withdraw the plea. See Motion to Reconsider in Case No. D-1215-CR-201000206. The following timeline reflects the state court docket activity between 2011 and
2018:
Dec. 5, 2011:

Mr. Aragon files the first motion to reconsider.

Feb. 27, 2012:

Mr. Aragon files a state habeas petition.

Nov. 14, 2013:

The state court denies the habeas petition but does not
address the motion to reconsider.

Dec. 3, 2013:

Mr. Aragon files a certiorari appeal.

Feb. 14, 2014:

The New Mexico Supreme Court (NMSC) grants certiorari
review in connection with the state habeas petition.

April 18, 2016:

The NMSC quashes the writ of certiorari and remands the
proceeding to the state trial court.

June 29, 2016:

The state court denies all pending motions to reconsider.
The order specifies that it triggers the right to a direct appeal
of the original judgment.

July 29, 2016:

Mr. Aragon seeks an extension of the 30-day period to
appeal the original judgment. The extension is granted, and
the new appeal period is August 29, 2016.

Aug. 30, 2016:

Mr. Aragon does not appeal, the extended appeal period
expires, and the original Judgment becomes final.

- 279 days pass with no state court activity 2

June 5, 2017:

Mr. Aragon files a second state habeas petition.

July 19, 2017:

The state court denies the motion.

Aug. 21, 2017:

Mr. Aragon does not initially appeal, the 30-day appeal
period expires, and the ruling becomes final.

- 122 days pass with no state court activity Dec. 21, 2017:

Mr. Aragon files a certiorari appeal along with a motion to
appeal out-of-time.

Jan. 4, 2018:

The NMSC accepts the untimely appeal but denies certiorari
relief.

- 53 days pass with no state court activity Feb. 26, 2018:

Mr. Aragon files the instant federal § 2254 proceeding.

See Docket Sheets in Case Nos. D-1215-CR-2010-00206; S-1-SC-36807; and S-1-SC34443.
Mr. Aragon amended his Petition on March 16, 2020. (Doc. 16). He raises claims
for ineffective assistance of counsel; due process violations; Brady violations;
sentencing errors; prosecutorial misconduct; illegal search and seizure; speedy trial
violations; involuntary plea; and actual innocence. (Doc. 16 at 6, 8, 9, 11, 13, 14, 18,
and 21). Along with the amended Petition, Mr. Aragon also filed motions to extend the
deadline to amend his pleading, (Doc. 14), and to appoint counsel, (Doc. 15). Mr.
Aragon prepaid the $5 filing fee, and the case is ready for initial review.
II. Motion to Extend & Motion to Appoint Counsel
In the Motion to Extend Time, Mr. Aragon initially sought a 90-day extension of
the deadline to amend his § 2254 petition. The amendment deadline was originally
March 12, 2020. (Doc. 13). Mr. Aragon then amended his Petition on March 16, 2020.
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(Doc. 16). The Court will therefore GRANT IN PART the Motion to Extend Time, (Doc.
14), and accept the amended Petition as timely.
As to the request for counsel, there is no constitutional right to such relief in a
habeas proceeding. See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008).
Unless and until an evidentiary hearing is held, “[t]he decision to appoint counsel is left
to the sound discretion of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122
(10th Cir. 2001). Factors guiding such discretion include “the merits of the litigant’s
claims, the nature of the factual issues raised in the claims, the litigant’s ability to
present his claims, and the complexity of the legal issues raised by the claims.”
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). Considering these factors, the
Court is not convinced counsel should be appointed at this time. Mr. Aragon filed a
detailed, well organized amended Petition that includes the relevant state-court filings,
and the habeas claims appear to be time-barred. The Court will therefore DENY the
Motion to Appoint Counsel, (Doc. 15).
III. Initial Review of the § 2254 Petition
The Petition is governed by Habeas Corpus Rule 4 and 28 U.S.C. § 2254.
Habeas Corpus Rule 4 requires a sua sponte review of habeas petitions. “If it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to
relief … the judge must dismiss the petition.” Habeas Corpus Rule 4. “If the petition is
not dismissed, the judge must order the respondent to file an answer….” Id. As part of
the initial review process, “district courts are permitted … to consider, sua sponte, the
timeliness of a state prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198, 209
(2006).
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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).

Equitable tolling may also be available “when an inmate diligently pursues his claims
and demonstrates that the failure to timely file was caused by extraordinary
circumstances beyond his [or her] control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th
Cir. 2000).
In this case, the Judgment became final in 2016, after the state court denied Mr.
Aragon’s motions to reconsider his sentence. The order denying the motions explicitly
triggered the right to “file a direct appeal of the 2011 Judgment.” See CLS: Order,
Application, Petition, or Motion Denied, filed June 29, 2016 in Case No. D-1215-CR2010-00206. However, Mr. Aragon did not file a direct appeal by the extended deadline,
August 29, 2016. See Docket Sheet in Case No. D-1215-CR-2010-00206. His
conviction therefore became final no later than August 30, 2016, the first business day
after the direct-appeal period expired. See Locke v. Saffle, 237 F.3d 1269, 1271-1273
(10th Cir. 2001) (For purposes of § 2254, the conviction becomes final upon the
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expiration of the direct appeal period).
Two hundred and seventy-nine (279) days elapsed before Mr. Aragon filed a
second state habeas petition, which stopped the clock pursuant to § 2244(d)(2). The
state habeas proceeding remained pending until August 21, 2017, when the 30-day
appeal expired in connection with the order denying state habeas relief. See Serrano v.
Williams, 383 F.3d 1181, 1184 (10th Cir. 2004) (“[R]egardless of whether a petitioner
actually appeals a denial of a post-conviction application, the limitations period is tolled
during the period in which the petitioner could have sought an appeal under state law.”);
NMRA, Rule 12-501 (a writ of certiorari must be filed within 30 days after the state
district court’s denial of a habeas petition). “The next day [August 22, 2017] statutory
tolling ceased,” and the remaining “time for filing a federal habeas petition [here, 86
days]1 resumed….” Trimble v. Hansen, 2019 WL 990686, at *2 (10th Cir. Feb. 28,
2019) (addressing complex tolling calculations under § 2244). The state court docket
reflects there was no additional tolling activity during the next 86 days. See Docket
Sheets in Case Nos. D-1215-CR-2010-00206 and S-1-SC-36807. The limitation period
therefore expired on November 16, 2017. The untimely certiorari appeal filed after that
date did not - as Mr. Aragon may believe - restart the clock or otherwise impact the
expired limitations period. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000).
The § 2254 proceeding filed on February 26, 2018, therefore appears to be time-barred.
Based on the forgoing, the Court will require Mr. Aragon to show cause within

1.
The Court arrived at this figure by subtracting the number of days that
initially elapsed without tolling activity (279) from the one-year period (i.e., 365 days in a
year - 279 days = 86 remaining days).
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thirty (30) days of entry of this Order why his § 2254 petition should not be dismissed as
untimely. If he disputes the timeline set forth in the background section of this Opinion,
he must specify which date he believes is incorrect, and why. If Mr. Aragon declines to
respond to this Order or demonstrate grounds for tolling, the Court will dismiss this
habeas action without further notice.
IT IS THEREFORE ORDERED that Mr. Aragon’s Motion to Extend Time, (Doc.
14) is GRANTED IN PART; and the amended § 2254 Petition filed on March 16, 2020 is
deemed to be timely;
IT IS FURTHER ORDERED that Mr. Aragon’s Motion to Appoint Counsel, (Doc.
15) is DENIED; and
IT IS FINALLY ORDERED that within thirty (30) days of entry of this Order, Mr.
Aragon must file a response showing cause, if any, why his § 2254 Petition should not
be dismissed as untimely.
IT IS SO ORDERED.

________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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