Flores v. Bourne et al
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (PFRD) by Magistrate Judge Gregory J. Fouratt. Objections to PFRD due by 9/22/2021. (gbg)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Civ. No. 20-1028 JCH/GJF
ROBIN BOURNE, Warden,
JOHN SANCHEZ, Deputy Warden, and
STATE OF NEW MEXICO,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court1 on a Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2254 [ECF No. 1], Respondents’ Answer [ECF No. 9], and Petitioner’s Reply [ECF
No. 12]. Having reviewed the briefing, relevant law, and otherwise being fully advised, this Court
recommends the Petition be DENIED for the reasons that follow.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
On January 4, 2016, a Criminal Information filed in New Mexico’s 4th Judicial District
Court charged Petitioner with two counts of Criminal Sexual Contact of a Minor in the Third
Degree (Child Under 13). Petitioner retained Marc Grano, Esq., to represent him. After discovery,
pretrial litigation, and four previous trial continuances, the district court scheduled a jury trial to
begin May 2, 2017.
During the pretrial period, the State extended two plea offers to Petitioner via his counsel.
See Answer, Exs. B-C. Very early on – indeed, only two months after charges were filed – the
Senior U.S. District Judge Judith C. Herrera referred this case to the undersigned to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend an ultimate disposition of
the case. See ECF No. 10. Although Petitioner requested an evidentiary hearing, see Pet. at 10, he has not identified
any evidence to be propounded at such a hearing. Consequently, this Court concludes that no evidentiary hearing is
required or permitted. See 28 U.S.C. § 2254(e)(2).
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State offered Petitioner a plea in which he could plead guilty or no contest to both charges and
sentencing would be left solely to the trial court’s discretion. Answer, Ex. B. Petitioner did not
accept the offer. The second offer – which forms the gravamen of Petitioner’s request for habeas
corpus relief – occurred approximately seven weeks before trial. Answer, Ex. C. Substantially
more attractive than its predecessor, this offer would have required Petitioner to plead guilty or no
contest only to Count 1 with a sentence of eighteen months of probation. Id. The parties further
would have agreed that the trial court would decide whether to defer the adjudication or grant a
conditional discharge upon Petitioner’s successful completion of the probationary term. Id. By
its terms, this offer required acceptance not later than March 31, 2017, and warned that there would
be “no subsequent plea negotiations.” Id. Petitioner did not accept the second offer either, despite
its guarantee of probation and the possibility that the conviction would be rendered a virtual legal
The jury trial commenced on May 2, 2017, and the jury convicted Petitioner of both counts
the following day. On September 28, 2017, the trial court sentenced Petitioner to imprisonment
for six years as to each of the counts but suspended the sentence for Count 2. Answer, Ex. A at 2.
The sentence also included parole for a term of five years to life and registration as a sex offender.
Id. at 2-3. The trial court filed the Judgment and Commitment on October 11, 2017. Id. at 1.
Petitioner thereafter timely filed a notice of appeal. Answer, Ex. G. Prior to filing his
opening brief, however, Petitioner (through counsel) moved to dismiss his appeal. Answer, Ex.
M. On February 7, 2018, the New Mexico Court of Appeals granted the motion and dismissed the
appeal. Answer, Exs. H, M. Petitioner sought no further direct review of his conviction or
Both offers advised that the charged offenses potentially exposed Petitioner to six years in prison. Answer, Exs. BC.
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Three months after abandoning the direct appeal route but still represented by the same
appellate counsel, Petitioner sought habeas corpus relief from the state district court. Answer, Ex.
D. Petitioner advanced the same ground for relief that he has advanced in the instant Petition: that
his trial counsel’s failure to explain to him the second plea offer deprived Petitioner of the effective
assistance of counsel guaranteed by the Sixth Amendment. Petitioner contended before the state
court, as he does here, that had his counsel adequately explained the second offer to him, he would
have accepted it and not taken his chances at trial. Id. at 5, 10. After the petition was fully briefed
and Petitioner had obtained new counsel, the state court held an evidentiary hearing at which
Petitioner and his trial counsel testified. On May 29, 2019, the court filed an order denying the
petition. Answer, Ex. F. Petitioner sought review of that decision by the New Mexico Supreme
Court, but that court denied certiorari on August 20, 2019. Answer, Ex. N.
Petitioner alleges that he retained Cristin Kennedy, Esq., on October 9, 2019, for the
purpose of seeking habeas relief in this Court. See Pet. at 5. Petitioner asserts that Attorney
Kennedy advised him that the deadline for doing so was August 20, 2020 – precisely one year after
the state supreme court issued its denial of review. Id. Petitioner contends that Attorney Kennedy
died on the morning of August 20th without having filed his federal habeas petition. Id. Petitioner
retained new federal habeas counsel on September 1, 2020. Id. This Petition followed on October
7, 2020. See ECF 1.
As mentioned above, Petitioner advances a singular ground for relief: that his trial counsel
rendered constitutionally ineffective assistance by failing to adequately explain the State’s second
(and final) plea offer. Petitioner insists that had he been fully informed about what the plea offer
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meant, he would have accepted it, pled no contest, avoided prison altogether, and retained the right
to ask the trial court for a conditional discharge. Pet., passim. Petitioner argues that the state trial
court unreasonably applied controlling federal law in denying his habeas petition. Pet. at 6.
Petitioner requests that this Court vacate his convictions and require the State to re-extend the final
plea offer. Pet. at 8.3
In response, the State contends first that the Petition is inexcusably late, filed well after the
statutory deadline. Answer at 4-6. Because in its view the deadline expired some three months
before Attorney Kennedy’s death, the State further asserts that the doctrine of equitable tolling
should not operate to excuse the missed deadline. Id. at 6-8. On the merits of Petitioner’s Sixth
Amendment claim, the State urges this Court to deny relief by concluding that the state trial court
did not unreasonably apply controlling federal law. Id. at 8-11.
In reply, Petitioner modifies his equitable tolling argument to include a claim that Attorney
Kennedy’s representation prior to her death was so deficient and egregious as to constitute
“misconduct.” Reply at 2. Petitioner attached to the Reply an electronic mail exchange between
Attorney Kennedy and Petitioner’s mother that occurred between August 3-14, 2020, in which
Attorney Kennedy reiterated that August 20th was the deadline to file the federal habeas petition.
Reply, Ex. 1. Petitioner argues that he does not have training in the law, relied in good faith on
Attorney Kennedy to comply with any applicable deadline, and should be absolved of any error
Anticipating a claim that the Petition was filed after the statutory deadline, Petitioner asserts that the time between
Attorney Kennedy’s death and the filing of the Petition should be equitably tolled. Pet. at 4-6. The Petition is silent,
however, on the possibility that the statutory deadline had expired well before counsel’s death.
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on her part in failing to do so. Reply at 2-3.
LIMITATION PERIOD AND STATUTORY TOLLING: ANALYSIS
Title 28, United States Code, Section 2244(d)(1) dictates the deadline by which habeas
corpus petitions under § 2254 must be filed. As relevant to this case, § 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of … the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review[.]
28 U.S.C. § 2244(d)(1).
Here, the judgment “became final” on February 7, 2018, when the New Mexico Court of
Appeals granted his counsel’s Motion to Dismiss the Appeal. See Answer, Ex. H. By affirmatively
withdrawing his direct appeal rather than waiting for the court of appeals to decide it, Petitioner
(1) effectively terminated his ability to seek direct review of his conviction, (2) rendered his
judgment final under § 2244(d)(1)(A), and (3) started the one-year limitation clock.4
Section 2244 includes a tolling provision that stops the one-year clock for “[t]he time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending[.]” § 2244(d)(2). Consequently, Petitioner
stopped the clock on May 7, 2018, when he filed his Petition for a Writ of Habeas Corpus in the
state trial court. See Answer, Ex. D. By that time, the limitation clock had been running from
The State suggests the possibility that Petitioner’s conviction did not become “final” under § 2244(d)(1)(A) until
thirty days after the court of appeals’ dismissal of the direct appeal. See Answer at 5. Under NMRA 12-502, a party
has thirty days to seek review of a court of appeals decision by petitioning for a writ of certiorari to the New Mexico
Supreme Court. The State’s suggestion finds some traction in Gonzales v. Thaler, 565 U.S. 134, 150 (2012), which
held that – in cases in which state prisoners do not appeal to the state’s highest court – their judgments become final
under § 2244(d)(1)(A) when their time for seeking such review has expired. In the instant case, however, this Court
concludes that additional days should not be granted because Petitioner affirmatively withdrew his appeal by moving
to dismiss it. In this Court’s view, there were no other avenues available to Petitioner on direct review once he received
the relief he specifically requested. Ultimately, whether Petitioner could have sought certiorari review of the dismissal
of an appeal that Petitioner himself requested is a question this Court need not decide. The Court agrees with the State
that the instant Petition was filed well after the deadline regardless whether the one-year clock began running on
February 8, 2018, or thirty days later, which would have been March 10, 2018.
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February 8, a period of 88 days. After the trial court denied the petition, Petitioner sought review
by the New Mexico Supreme Court. See Answer, Ex. I. When that court denied certiorari on
August 20, 2019, see Answer, Ex. K, the statutory tolling period ended and the one-year clock
resumed its countdown with 277 days to go. Under operation of federal law, the end of the oneyear limitation period became May 23, 2020.5
In his Petition and later in his Reply, Petitioner urges the Court to focus on the significance
of August 20, 2020, for that is the day on which Attorney Kennedy believed Petitioner’s federal
habeas petition was due and the day on which she unexpectedly died. Petitioner contends that
these circumstances were entirely out of his control and he should therefore benefit from the
doctrine of equitable tolling to excuse from the one-year limitation period the days between August
20, 2020, and October 7, 2020, the date on which his new counsel filed the instant Petition. In
effect, Petitioner is seeking the Court’s permission to have his Petition “relate back” to August 20,
Appearing nowhere in Petitioner’s briefing, however, is any discussion of May 23, 2020 –
the date on which the one-year clock under § 2244(d)(1)(A) actually expired. Although Petitioner
has proffered an e-mail exchange between his mother and Attorney Kennedy, see Reply, Ex. 1, the
Court notes that exchange occurred between August 3-14, 2020, more than two months after the
limitation period ended.
EQUITABLE TOLLING: ANALYSIS
The only legal doctrine that theoretically offers Petitioner any relief from the dismissal
This date becomes June 22, 2020, if the Court takes into account the possibility that Petitioner might have been able
to seek certiorari from the New Mexico Supreme Court after successfully moving to dismiss his direct appeal. Even
that interpretation offers Petitioner no relief, however, for it yields the conclusion that the August 20th target date
affixed by Attorney Kennedy was still 58 days late.
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otherwise required by failing to comply with the limitations period is equitable tolling. In his reply
brief, Petitioner invokes that doctrine by implying that Attorney Kennedy’s representation of him
prior to her death was so deficient and egregious as to constitute “misconduct.” Reply at 2. To
support such a bold claim, however, Petitioner points only to Attorney Kennedy advising and
continually re-advising Petitioner and his mother that the filing deadline was August 20, 2020. Id.
at 2-3. Petitioner even concedes that the August 20th deadline was erroneous: “The fact that Ms.
Kennedy did not alert [Petitioner] of the correct filing date, despite having been retained on the
matter for almost one year, was certainly beyond [Petitioner’s] control.” Id. at 3 (emphasis added).
Petitioner argues that he does not have training in the law, relied in good faith on Attorney Kennedy
to comply with any applicable deadline, and should be absolved of any error on her part in failing
to do so. Reply at 2-3.
To obtain equitable tolling based on attorney misconduct, the attorney’s actions must be
“[p]articularly egregious, ... such as repeated, deceitful assurances that a habeas petition would
soon be filed.” Trujillo v. Tapia, 359 F. App’x 952, 955 (10th Cir. 2010) (unpublished) (emphasis
added) (citing Fleming v. Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007)); see also Montoya v.
Milyard, 342 F. Appx. 430, 432 (10th Cir. 2009) (unpublished) (explaining that equitable tolling
is available only where an attorney “affirmatively misled his client”). To obtain relief, a petitioner
must demonstrate an attorney’s conduct constitutes “far more than ... ‘excusable neglect.’”
Holland v. Florida, 560 U.S. 631, 651-52 (2010). “[A] garden variety claim of excusable neglect,
such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling.” Id.6 In other words, mere negligence by counsel is generally not a basis for
Additional guidance from other circuits emphasizes how egregious the attorney misconduct must be to justify
equitable tolling. See, e.g., United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005) (concluding that habeas
counsel’s affirmative misrepresentations, failure to communicate with habeas client, and failure to return client’s
papers constitute egregious misconduct that may be basis for equitable tolling); Spitsyn v. Moore, 345 F.3d 796, 801
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equitable tolling. See Fleming, 481 F.3d at 1255-56. Indeed, “clients, even if incarcerated, must
‘vigilantly oversee,’ and ultimately bear responsibility for, their attorneys’ actions or failures.” Id.
The United States Supreme Court has squarely rejected the argument that a habeas
attorney’s miscalculating of a limitations period entitles a petitioner to equitable tolling. Lawrence
v. Florida, 549 U.S. 327, 336-37 (2007) (“If credited, this argument would essentially equitably
toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation
is simply not sufficient to warrant equitable tolling, particularly in the postconviction context
where prisoners have no constitutional right to counsel.” (emphasis added)).
For its part, the Tenth Circuit has repeatedly refused to apply equitable tolling where, as
here, habeas counsel negligently misapprehended the requirements of 28 U.S.C. §§ 2244 and 2254.
See Fleming, 481 F.3d at 1256 (citing cases for the proposition that equitable tolling is not available
based on “attorney error, miscalculation, inadequate research,” or “a mistake by a party’s counsel
in interpreting a statute of limitations”) (quotations omitted); Jones v. Romero, 835 Fed. Appx.
973, 978 (10th Cir. 2020) (unpublished) (declining to apply equitable tolling where petitioner
“received improper advice [regarding the statute of limitations] within AEDPA’s one-year
window”); Chavez v. Franco, 794 Fed. Appx. 741, 745 (10th Cir. 2019) (unpublished) (finding no
extraordinary circumstance to justify tolling where “state post-conviction counsel was ineffective
for failing to assert all of the claims in a timely fashion in the New Mexico state courts”); Mullins
v. Allbaugh, 663 Fed. Appx. 628, 632 (10th Cir. 2016) (unpublished) (declining to apply equitable
(9th Cir. 2003) (holding that attorney’s misconduct in failing to file habeas petition and refusing to return client file
constitutes egregious misconduct that may justify equitable tolling); Baldayaque v. United States, 338 F.3d 145, 152
(2d Cir. 2003) (reasoning that egregious misconduct on the part of petitioner’s counsel, including failure to file § 2255
petition as requested by client, failure to conduct research on client’s case, and failure to communicate with client,
may justify equitable tolling); Brown v. Shannon, 322 F.3d 768, 773–74 (3d Cir. 2003) (acknowledging that an
attorney’s affirmative lies to petitioner may be grounds for equitable tolling); United States v. Wynn, 292 F.3d 226,
230 (5th Cir. 2002) (same).
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tolling where petitioner went “through at least five lawyers, one of whom sat on the case for many
years and was eventually disbarred”); Phillips v. Addison, 448 Fed. Appx. 817, 819 (10th Cir.
2011) (unpublished) (“Unacceptable though attorney Monroe’s mistake may be, it is a negligent
miscalculation of the sort that our precedents deem unworthy of equitable tolling. Unlike the
unscrupulous attorney in Fleming who intentionally deceived his client into believing he was filing
a petition, Monroe simply provided incorrect advice.”); Montoya v. Milyard, 342 Fed. Appx. 430,
432 (10th Cir. 2009) (unpublished) (The failure to “notify [petitioner] of the statute of limitations”
constitutes ordinary negligence and is not grounds for tolling); Reynolds v. Hines, 55 Fed. Appx.
512, 513 (10th Cir. 2003) (unpublished) (affirming district court’s “reject[ion][of] Reynolds’
request that the limitations period be equitably tolled” noting “Reynolds’ attorney’s incorrect
advice regarding when the limitations period began to run was not the type of extraordinary
circumstance entitling Reynolds to equitable tolling”); see also Cordova v. Martinez, 2021 WL
2156461 (D.N.M. May 27, 2021) (unpublished) (refusing to apply equitable tolling based on
habeas counsel’s miscalculation of, and inadequate research on, the statute of limitations).
Other circuits align with ours on the principle that negligence by habeas counsel does not
give rise to equitable tolling. “The rationale is that attorney negligence is not extraordinary and
clients, even if incarcerated, must ‘vigilantly oversee,’ and ultimately bear responsibility for, their
attorneys’ actions or failures.” Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003); see also
Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (applying general rule that “attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise to the
extraordinary circumstances required for equitable tolling” (quotation omitted)); Rouse v. Lee, 339
F.3d 238, 248 (4th Cir. 2003) (“[A] mistake by a party’s counsel in interpreting a statute of
limitations does not present the extraordinary circumstance beyond the party’s control where
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equity should step in to give the party the benefit of his erroneous understanding.” (quotation
omitted)); United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005) (“Ineffective assistance of
counsel, where it is due to an attorney’s negligence or mistake, has not generally been considered
an extraordinary circumstance [with respect to equitable tolling].”).
Applying the foregoing legal authorities to the facts here, this Court readily concludes that
there is no evidence whatsoever that Attorney Kennedy’s mistake in calculating the filing deadline
was borne of anything other than negligence. The filing date that she targeted all along was August
20, 2020, exactly one year after the New Mexico Supreme Court denied the petition for writ of
certiorari. Attorney Kennedy was the fourth attorney to represent Petitioner in this case (following
on the heels of Marc Grano, Esq., Zachary Ives, Esq., and the team of Ryan Villa and Richelle
Anderson, Esqs) and was retained several weeks after the state supreme court denied review. With
the benefit of hindsight, it is easy to see how Attorney Kennedy could have inadvertently failed to
account for the time the one-year limitations clock ran before the filing of the state habeas petition.
After all, she was not involved in Petitioner’s case when that time was running. But no matter
how earnest or well-intentioned, Attorney Kennedy’s calculation of the filing deadline was
contrary to law for it omitted consideration of the 88 days that had lapsed between the date on
which Petitioner’s judgment became final (February 7, 2018) and the date on which he stopped
the clock by filing the state habeas petition (May 7, 2018).
Although Petitioner intimates that Attorney Kennedy was guilty of egregious misconduct,
Reply at 2, there is nothing to support such an accusation. Unlike the facts in Fleming, Petitioner
here makes no argument that his attorney intentionally or maliciously deceived him or his mother,
abandoned his case, or secretly knew that the limitation period had expired months before. Instead,
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Attorney Kennedy’s conduct here falls short – far short – of the egregious misconduct that could
justify equitable tolling.
Because the deadline under § 2241(d)(1) expired May 23, 2020 (or June 22, 2020, at the
very latest), it is not necessary for the Court to consider or decide the legal significance of Attorney
Kennedy’s failure to file the federal habeas petition on August 20th. Furthermore, because of its
conclusion that the Petition is time-barred, the Court does not address the merits of Petitioner’s
claim that the state habeas court unreasonably applied federal law in evaluating whether
Petitioner’s trial counsel provided ineffective assistance during plea negotiations.
For the foregoing reasons, the Court RECOMMENDS that the presiding judge conclude
that the Petition for Writ of Habeas Corpus is barred by the one-year limitation period set forth in
28 U.S.C. § 2244(d)(1)(A). The Court FURTHER RECOMMENDS that the Petition be
DENIED and this case DISMISSED WITH PREJUDICE. The Court FINALLY
RECOMMENDS that no certificate of appealability be granted.
IT IS SO RECOMMENDED.
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(c). Any request for an extension
must be filed in writing no later than seven days from the date of this filing. A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party wants
to have appellate review of the proposed findings and recommended disposition. If no objections
are filed, no appellate review will be allowed.
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