Cheney v. Judd
Filing
7
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting Petitioner's Motion to Consolidate (Doc. 6); denying Petitioner's Petition for 2254 Relief (Doc. 1) Terminated document(s): 1 Petition for 2254 Relief 6 MOTION to Consolidate Cases. Related document(s): 6 MOTION to Consolidate Cases, 1 Petition for 2254 Relief. (bo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LOGAN CHENEY,
Petitioner,
vs.
BETTY JUDD, Warden, and
ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO
No. CIV 18-0196 JB\CG
No. CIV 18-0218 JB\CG
No. CIV 18-0385 KG\CG
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) Petitioner’s Amended Habeas Corpus
Petition Under 28 U.S.C. § 2254, filed April 16, 2018 (No. CIV 18-0218 JB\CG, Doc.
8)(“Amended Petition”); (ii) Petitioner’s Petition for Writ of Habeas Corpus, filed April 25, 2018
(No. CIV 18-0385 KG\CG, Doc. 1)(“Second Habeas Petition”); (iii) Petitioner’s Motion to
Consolidate, filed May 10, 2018 (No. CIV 18-0218 JB\CG, Doc 13)(“First Motion to
Consolidate”); (iv) Petitioner’s Motion to Consolidate, filed May 10, 2018 (No. CIV 18-0385
KG\CG, Doc. 6)(“Second Motion to Consolidate’); and (v) Plaintiff’s Motion to Consolidate, filed
May 10, 2018 (No. CIV 18-0196 JB\CG, Doc. 24)(“Third Motion to Consolidate”). Petitioner
Logan Cheney seeks to consolidate his two habeas actions (No. CIV 18-218 JB\CG and No. CIV
18-385 KG\CG) and his 42 U.S.C. § 1983 civil rights action (No. CIV 18-196 JB\CG). In the
habeas actions, Cheney challenges the constitutionality of his state court convictions for
aggravated battery. See Amended Petition at 1; Second Habeas Petition at 1. The Honorable
Carmen Garza, United States Magistrate Judge for the United States District Court for the District
of New Mexico, ordered Cheney to show cause why his habeas claims should not be dismissed for
failing to exhaust state remedies, as required by 28 U.S.C. § 2254(b)(1)(A). See Order to Show
Cause at 1, filed May 1, 2018 (No. CIV 18-0218 JB\CG, Doc. 11). Having reviewed the
Response, the record, and applicable law, the Court will consolidate the two habeas actions but
dismiss both cases without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
The following background information was taken from the Amended Petition in No. CIV
18-0218 JB\CG and Cheney’s state court criminal docket, which is subject to judicial notice. See
United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(noting that district 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”).
On May 7, 2015, the State of New Mexico charged Cheney with attempted murder,
shooting at a dwelling or occupied building and tampering with evidence.
See Criminal
Information in case no. D-1116-CR-2015-00385. Cheney later pled guilty to aggravated battery
causing great bodily harm and aggravated battery with a deadline weapon in violation of N.M.
Stat. Ann. §§ 30-03-05(C) and 31-18-16.
See Plea and Disposition Agreement, entered
November 3, 2017 in case no. D-1116-CR-2015-00385. On December 5, 2017, the State District
Court sentenced Cheney to seven years in prison, followed by two years of parole. See Amended
Petition at 1.
Cheney then initiated a series of actions in federal court. First, Cheney filed a civil rights
complaint. See Pro Se Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 at 1, filed February
28, 2018 (Doc. 1)(“Complaint”). Cheney then filed a motion challenging his State sentence’s
length. See Motion to Resentence on the Grounds of Unduly Harsh and Excessive Sentencing,
filed On March 6, 2018 (Doc. 1)(“Motion”). On March 14, 2018, Magistrate Judge Garza
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explained that Cheney must file a habeas proceeding under 28 U.S.C. § 2254 if he wished to
challenge his state sentence in federal court. See Order to Cure Deficiency at 1, filed March 14,
2018 (Doc. 3). Cheney then submitted a § 2254 Habeas Corpus Petition. See Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody at 1, filed March 23, 2018
(Doc. 6). However, he failed to sign that submission under penalty of perjury as required by
Habeas Corpus Rule of Procedure 2(c)(5). Magistrate Judge Garza again required Cheney to cure
the deficiency. See Second Order to Cure Deficiency, filed April 3, 2018 (Doc. 7). Cheney then
filed the Amended Petition on April 16, 2018. See Amended Petition at 1-3. Cheney also filed
a Motion for Leave to Proceed In Forma Pauperis on April 16, 2018 (Doc. 9), which the Court
granted on April 25, 2018, see Order Granting Motion to Proceed in Forma Pauperis at 1 (Doc.
10). On the same day, Cheney filed a second habeas corpus action under 28 U.S.C. § 2254. See
Second Habeas Petition at 1.
In the habeas proceedings, Cheney asks the Court to vacate his state court sentence. See
Amended Petition at 7, 10; see also Second Habeas Petition at 3. Cheney raises claims for
“unduly harsh and excessive sentencing,” “bias . . . of court officers,” and double jeopardy
violations. Second Habeas Petition at 1. Cheney has not raised any of his federal claims before
the New Mexico Supreme Court. See Amended Petition at 3; Second Habeas Petition at 3.
Accordingly, Magistrate Judge Garza ordered Cheney to show cause why his Amended Petition
should not be dismissed for failure to exhaust state remedies. See Order to Show Cause, filed
May 1, 2018 (Doc. 11)(“Third Order to Show Cause”). See 28 U.S.C. § 2254(b)(1)(A) (requiring
a habeas applicant to exhaust “remedies available in the Courts of the State”).
Cheney responded to the Third Order to Show Cause. See Response at 1, filed May 10,
2018 (Doc. 12) Cheney argues that the exhaustion requirement should be excused because: (i)
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the time for filing a direct criminal appeal is expired; (ii) he is ignorant of the law; and (iii) he filed
two other federal proceedings -- another habeas proceeding and a 42 U.S.C. § 1983 civil rights
action. See Response at 1. Cheney also asks that the Court consolidate all three federal actions.
See Motion at 1.
LAW REGARDING CONSOLIDATION
Rule 42 of the Federal Rules of Civil Procedure provides: “If actions before the court
involve a common question of law or fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay.” Fed. R. Civ. P. 42(a). In deciding whether to grant a motion to
consolidate, the court should initially consider whether the cases to be consolidated involve a
common question of law or fact. See Servants of the Paraclete, Inc. v. Great American Insurance
Co., 866 F. Supp. 1560, 1572 (D.N.M. 1994)(Burciaga, J.). If there is a common question, the
court should weigh the interests of judicial convenience in consolidating the cases against the
delay, confusion, and prejudice that consolidation might cause. See Servants of the Paraclete v.
Great American Insurance Co., 866 F. Supp. at 1572. The party moving for consolidation bears
the burden of demonstrating that consolidation is desirable. See Servants of the Paraclete v. Great
American Insurance Co., 866 F. Supp. at 1572.
Consolidation does not result in a merger of separate suits into a single cause of action.
See Harris v. Ill–Cal. Esp., Inc., 687 F.2d 1361 (10th Cir. 1982).
“[C]onsolidation does not cause one civil action to emerge from two; the actions
do not lose their separate identity; the parties to one action do not become parties
to the other” ... Instead, consolidation is an artificial link forged by a court for the
administrative convenience of the parties, it fails to erase the fact that, underneath
consolidation's façade, lie two individual cases.
Chaara v. Intel Corp., 410 F.Supp.2d 1080, 1089, 1094 (D.N.M. 2005)(Browning, J.)(quoting
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McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982)).
The Court has broad discretion in determining whether to consolidate cases. See Gillette
Motor Transp., Inc. v. N. Okla. Butane Co., 179 F.2d 711 (10th Cir. 1950). Consolidation is a
question of convenience and economy in judicial administration, and the court is given broad
discretion to decide whether consolidation under rule 42(a) would be desirable, and the district
judge's decision inevitably is highly contextual. See 9A Charles Alan Wright, Arthur R. Miller,
Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure, Civil §
2383 at 26–31 (3d ed. 2008). A court’s decision to grant or deny consolidation is reviewed for
abuse of discretion and a court's denial of a party’s request to consolidate will be affirmed on
appeal absent clear error or exigent circumstances. See Skirvin v. Mesta, 141 F.2d 668, 672 (10th
Cir. 1944); Am. Emp'rs Ins. Co. v. Bottger, 545 F.2d 1265 (10th Cir. 1976).
LAW REGARDING § 2254 AND EXHAUSTION OF STATE REMEDIES
Section 2254 provides:
a district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2254(a). When a state prisoner challenges his custody and, by way of relief, seeks to
vacate his sentence and obtain immediate or speedy release, his sole federal remedy is a writ of
habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Henderson v. Sec’y of Corr.,
518 F.2d 694, 695 (10th Cir. 1975).
A writ of habeas corpus generally may not be granted unless the applicant has exhausted
state remedies.
See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is satisfied if the
federal issue has been properly presented to the highest state court, either by direct review of the
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conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d at 1534.
“Fair presentation, in turn, requires that the petitioner raise in state court the substance of his
federal claims.” Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015)(internal quotation
marks omitted). “This includes not only the [federal] constitutional guarantee at issue, but also
the underlying facts that entitle a petitioner to relief.” Dever v. Kansas State Penitentiary, 36 F.3d
at 1534. See Fairchild v. Workman, 579 F.3d 1134, 1149 (10th Cir. 2009)(“A claim is more than
a mere theory on which a court could grant relief; a claim must have a factual basis, and an
adjudication of that claim requires an evaluation of that factual basis.”)(quotations omitted). The
Court can excuse the exhaustion requirement “only if there is no opportunity to obtain redress in
state court or if the corrective process is so clearly deficient as to render futile any effort to obtain
relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). See 28 U.S.C. § 2254 (allowing a writ of
habeas corpus in the absence of state remedy exhaustion only if “there is an absence of available
State corrective process” or “such circumstances exist that render such process ineffective to
protect the rights of the applicant.”).
“Sua sponte consideration of exhaustion of state remedies . . . is explicitly permitted” where
the failure to exhaust appears on the face of the petition. United States v. Mitchell, 518 F.3d 740,
746 n.8 (10th Cir. 2008). As the United States Court of Appeals for the Tenth Circuit explained,
“habeas proceedings are different from ordinary civil litigation and, as a result, [the] usual
presumptions about the adversarial process may be set aside.” United States v. Mitchell, 518 F.3d
at 746. Rule 4 of the the Rules Governing Section 2254 Cases in the United States District Courts,
effective February 1, 1997 and amended on February 1, 2010 (hereinafter, “Habeas Corpus
Rules”), requires 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
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petition.” Habeas Corpus Rule 4. “If the petition is not dismissed, the judge must order the
respondent to file an answer. . . .” Habeas Corpus Rule 4.
LAW REGARDING PRO SE LITIGANTS
When a party proceeds pro se, the district court construes his or her pleadings liberally, and holds
them to a “less stringent standard than [that standard applied to] formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[I]f the Court can reasonably
read the pleadings to state a valid claim on which [the petitioner] could prevail, it should do so
despite [his] failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v.
Bellmon, 935 F.2d at 1110. The Court should liberally construe the pro se litigant’s factual
allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The Court
will not, however, “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d
at 1110. Moreover, “pro se status does not excuse the obligation of any litigant to comply with
the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v.
San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
ANALYSIS
Cheney asks the Court to consolidate his three federal actions and to vacate his state
criminal sentence for aggravated battery. See Motion at 1. The Court will address consolidation
before reaching the merits of his habeas claims. The Court will consolidate only Cheney’s habeas
claims, and will dismiss each habeas because Cheney did not exhaust his State remedies.
I.
THE COURT WILL CONSOLIDATE ONLY CHENEY’S HABEAS CLAIMS.
Cheney asks the Court to consolidate the following three federal actions: (i) the present
action, CIV. No. 18-218 JB/CG, in which Cheney seeks to vacate his battery convictions in State
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criminal case no. D-1116-CR-2015-00385, see Amended Petition at 2; (ii) Cheney’s second habeas
action, CIV. No. 18-385 KG/CG, which attacks the same state battery convictions, see Second
Habeas Petition at 2; and (iii) Cheney’s civil rights action under 42 U.S.C. § 1983, Civ. No. 18196 JB/CG, in which Cheney raises claims for cruel and unusual punishment based on his
placement in segregation, see Complaint at 2. The two habeas petitions involve “common
question of law [and] fact.” Leviton, 2007 WL 505784, at *3. Each case challenges the same
state criminal proceeding, and the Respondent is same in both cases. Compare Amended Petition
at 1, with Second Habeas Petition at 1. The grounds for relief are also nearly identical. Compare
Amended Petition at 1, with Second Habeas Petition at 1. In the first case, Cheney alleges the
convictions should be vacated based on, among other things, “unduly harsh and excessive
sentencing,” court officials’ “bias and prejudice”, his placement in segregation, and “double
jeopardy.” Amended Petition at 5-6. In his Second Habeas Petition, Cheney challenges the
convictions based on “unduly harsh and excessive sentencing; double jeopardy; cruel and unusual
punishment; [and] bias and prejudice due to firearm enhancement.” Second Habeas Petition at 2.
Further, because both habeas cases challenge the same criminal proceeding, the facts and law
pertaining to exhaustion will also be identical. See Fed. R. Civ. P. 42(a). For these reasons, and
because consolidation will promote judicial efficiency, the Court will grant Cheney’s request to
consolidate his two habeas proceedings.
As to Cheney’s civil rights case, consolidation is not appropriate. Cheney’s civil rights
case primary challenges his conditions of confinement in prison, rather than his underlying
criminal conviction. See Complaint at 3. “Habeas Corpus is not an appropriate vehicle to
challenge conditions of confinement.” Friedman v. Anderson,1 249 Fed. App’x 712, 712 (10th
1Friedman v. Anderson is an unpublished opinion, but the Court can rely on an unpublished
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Cir. 2007)(unpublished). See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000)(reiterating
that “federal claims challenging the conditions of . . . confinement generally do not arise under”
habeas statutes); United States v. Sisneros, 599 F.2d 946, 947 (10th Cir. 1979)(concluding that
claims for cruel and unusual punishment based on medical mistreatment are “not cognizable in a
federal habeas corpus proceeding”).
The Court therefore will deny Cheney’s request to
consolidate CIV No. 18-196 JB\CG with his habeas proceedings.
II.
CHENEY’S HABEAS CLAIMS ARE DEFECTIVE BECAUSE HE DID NOT
EXHAUST ALL AVAILABLE STATE REMEDIES.
As noted above, the court cannot reach the merits of a petitioner’s habeas claims unless
“the 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, 36 F.3d at 1534. Courts must
dismiss habeas claims without prejudice where the “petitioner’s failure to exhaust is clear from the
face of the petition,” Allen v. Zavaras, 568 F.3d 1197, 1201 (10th Cir. 2009), and no other §2254
exceptions to the exhaustion rule apply, see Kilgore v. Attorney Gen. of Colorado, 519 F.3d 1084,
opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
32.1(A)(“Unpublished opinions are not precedential, but may be cited for their persuasive value.”).
The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order has persuasive value with respect to a
material issue in a case and would assist the court in its disposition, we allow a
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
concludes that Herd v. Tapia, 356 Fed. App’x. 140 (10th Cir. 2009), Friedman v. Anderson, 249
Fed. App’x 712, and Gunderson v. Abbott, 172 F. App’x 806 (10th Cir. 2006), have persuasive
value with respect to a material issue, and will assist the Court in its disposition of this
Memorandum Opinion and Order.
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1089 (10th Cir. 2008)(clarifying that sua sponte dismissal is permitted where the procedural defect
is “clear from the face of the petition itself”). Cheney’s habeas petitions both demonstrate that
Cheney has not exhausted his State Court remedies.
The Amended Petition contains the
following question: “Have all grounds for relief that you have raised in this petition been presented
to the highest state court having jurisdiction?” Amended Petition at 12. Cheney responds “[n]o,”
and also indicates throughout the Amended Petition that he believes his federal district court
proceedings satisfy the exhaustion requirement. See Amended Petition at 12. Similarly, the
Second Habeas Petition states that “[t]his is the first time in a habeas for these grounds being
raised.” Second Habeas Petition at 3. The state court docket also confirms that Cheney did not
file a direct appeal or a state habeas petition. See Docket activity in case no. D-1116-CR-201500385.
In his Response, Cheney contends that the exhaustion requirement should be excused
because: (i) the time for filing a direct criminal appeal is expired; (ii) he is ignorant of the law; and
(iii) he has attempted to exhaust his claims through various federal cases. See Response at 1.
These arguments are insufficient to resist dismissal.
The court can excuse the exhaustion
requirement “only if there is no opportunity to obtain redress in state court or if the corrective
process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. at 3. Courts can reach the merits of unexhausted claims when “state procedural
snarls or obstacles preclude an effective state remedy against unconstitutional convictions.”
Bartone v. United States, 375 U.S. 52, 54 (1963).
Cheney has not alleged that New Mexico’s corrective process is insufficient. Although
he elected not to appeal, there is no time limit on filing a habeas petition in state court, provided it
relates to the underlying conviction. See N.M. R. Ann. 5-802. Further, ignorance of the law,
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including Cheney’s belief that he could exhaust his claims in federal court, is not a reason to waive
the exhaustion requirement, despite Cheney’s pro se status. See Marsh v. Soares, 223 F.3d 1217,
1219 (10th Cir. 2000)(holding that ignorance of the law cannot be used to overcome the procedural
requirements of § 2254); Herd v. Tapia, 356 F. App’x 140, 143 (10th Cir. 2009)(unpublished)(“[I]t
is well-settled that ignorance of the law cannot excuse the failure to exhaust”); Gunderson v.
Abbott, 172 F. App’x 806, 809 (10th Cir. 2006)(unpublished)(“[I]gnorance of the [requirement to
exhaust] . . . neither removes fault from the petitioner nor sets him apart from any other case.”).
The Court therefore concludes that Cheney has not exhausted his state court remedies. The Court
dismisses both consolidated habeas actions (Civ. No. 18-218 JB/CG with Civ. No. 18-385 KG/CG)
without prejudice.
IT IS ORDERED that (i) the Petitioner’s Motion to Consolidate, filed May 10, 2018 (No.
CIV 18-0218 JB\CG, Doc. 13), is granted; (ii) the Petitioner’s Motion to Consolidate, filed May
10, 2018 (No. CIV 18-0385 KG\CG, Doc. 6), is granted; (iii) Plaintiff’s Motion to Consolidate,
filed May 10, 2018 (No. CIV 18-0196 JB\CG, Doc. 24), is denied; (iv) Cheney’s Petition for Writ
of Habeas Corpus, filed April 1, 2018 (No. CIV 18-0385 KG\CG), is dismissed without prejudice;
and (v) Cheney’s Amended Petition Under 28 U.S.C. § 2254, filed April 16, 2018 (No. CIV 180218 JB\CG), is dismissed without prejudice.
_____________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Logan Cheney
Northwest New Mexico Correctional Center
Grants, New Mexico
Petitioner pro se
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