Dominguez v. Bourne

Filing 6

MEMORANDUM OPINION AND ORDER by Magistrate Judge Gregory J. Fouratt. Within thirty (30) days of entry of this Order, Dominguez must file a response showing cause, if any, why his § 2254 habeas petition should not be dismissed as untimely. (gbg)

Case 1:20-cv-00626-WJ-GJF Document 6 Filed 08/26/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PAT DOMINGUEZ,
Petitioner,
v.

Civ. No. 20-626 WJ-GJF

ROBIN BOURNE and
ATTORNEY GENERAL FOR
THE STATE OF NEW MEXICO,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Pat Dominguez’s habeas corpus petition [ECF 1]
[Petition]. Dominguez challenges his 2003 state convictions based on, inter alia, double jeopardy.
Having reviewed the matter under Habeas Corpus Rule 4, the Court will require Dominguez to
show cause why his Petition should not be dismissed for failure to file within the one-year limitation
period.
I. Procedural Background1
In 2003, Dominguez pled no contest to kidnapping, conspiracy to commit kidnapping,
conspiracy to commit extortion, and bribery of a witness. [ECF 1 at 42]. The state court
sentenced him to a total term of 31.5 years in prison. Id. Judgment on the conviction and
sentence was entered April 29, 2004. Id. Dominguez initially appealed, but he withdrew the
notice and instead filed motions to reconsider/for habeas relief. See Appeal Withdrawn and

To better interpret the citations in the Petition, the Court took judicial notice of Dominguez’s state
court criminal dockets, Case No. D-1215-CR-2000-419 and S-1-SC-29511. See 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).
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Motion to Reopen in D-1215-CR-2000-419. The state court denied all relief on September 28,
2005. [ECF 1 at 107]. Dominguez sought certiorari review with the New Mexico Supreme Court
(NMSC), which denied the petition on November 15, 2005. See ORD Deny in S-1-SC-29511.
The state dockets reflect Dominguez did not file a certiorari petition with the United States
Supreme Court (USSC). See Docket Sheets in D-1215-CR-2000-419 and S-1-SC-29511. The
Court assumes, without deciding, that his conviction and sentence did not become final until after
expiration of the 90-day USSC certiorari period. The conviction and sentence therefore became
final, at the latest, on February 14, 2006. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)
(one-year habeas limitation period commences under when time expires for seeking writ of
certiorari from USSC, regardless of whether petitioner seeks such review); Sup. Ct. R. 13.1
(providing 90-day period for filing petition for writ of certiorari).
Over four years passed with no tolling activity. See Docket Sheet in D-1215-CR-2000419. On March 25, 2010, Dominguez filed a second state habeas petition. See Habeas Corpus
Petition in D-1215-CR-2000-419. The state court again dismissed the claims on August 9, 2010.
See CLS: Order of Dismissal in D-1215-CR-2000-419. Dominguez filed another state habeas
petition on December 2, 2013, and he has been litigating continuously in that forum for about seven
years. See Docket Sheet in D-1215-CR-2000-419.
On June 29, 2020, Dominguez filed a federal 28 U.S.C. § 2241 Petition [ECF 1]. He argues
his state convictions violate double jeopardy principles because they all arise from the same
transaction. [ECF 1 at 5]. Because Dominguez challenges his state convictions, rather than the
execution of his sentence, the Court must construe the filing under 28 U.S.C. § 2254. See
Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 (10th Cir. 2017) (“[A] state prisoner’s federal

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habeas challenge to the validity of an underlying conviction or sentence must typically be brought
under § 2254.”). Dominguez paid the $5 habeas filing fee, and the matter is ready for initial
review.
II. Timeliness of the § 2254 Petition
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 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).
Here, the limitation period began to run no later than February 14, 2006, when the appeal
period expired in connection with Dominguez’s initial motions to reconsider and for habeas relief.
See Locke, 237 F.3d at 1271-1273. There was no discernable tolling activity during the next year,
and the one-year period expired no later than February 14, 2007. The various state habeas
petitions filed after that date did not - as Dominguez may believe - restart the clock or otherwise

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impact the expired limitations period. See Fisher v. Gibson, 262 F.3d 1135, 1142-1143 (10th Cir.
2001). Accordingly, Dominguez must show cause why the Petition filed June 29, 2020 is not
time-barred. The failure to timely respond or overcome the time-bar will result in dismissal of the
habeas action without further notice. See United States v. Mitchell, 518 F.3d 740, 746 (10th Cir.
2008) (“AEDPA’s time bar … may be may be raised by a court sua sponte… [H]abeas
proceedings are different from ordinary civil litigation and, as a result, our usual presumptions
about the adversarial process may be set aside.”)
IT IS ORDERED that within thirty (30) days of entry of this Order, Dominguez must file
a response showing cause, if any, why his § 2254 habeas petition should not be dismissed as
untimely.
SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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