Gros-Ventre v. Smith et al
Filing
12
ORDER DENYING 8 Motion to Appoint Counsel and ORDER TO SHOW CAUSE by Magistrate Judge Gregory B. Wormuth. Plaintiff's Response showing cause why his habeas petition should not be dismissed as untimely due by 5/30/2018. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSEPH GROS‐VENTRE,
Plaintiff,
v.
Civ. No. 17‐1089 KG/GBW
R.C. SMITH and
ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO,
Defendants.
ORDER DENYING MOTION TO APPOINT COUNSEL
AND ORDER TO SHOW CAUSE
Before the Court is Plaintiff’s habeas corpus petition under 28 U.S.C. § 2254 and
his Motion to Appoint Counsel. Docs. 1, 8. Plaintiff asks the Court to vacate his state
court sentence for manslaughter, aggravated battery, and tampering with evidence
based on, inter alia, ineffective assistance of counsel and due process violations. See
generally doc. 1. For the reasons below, the Court will deny Plaintiff’s Motion to Appoint
Counsel and require Plaintiff to show cause why his habeas petition (doc. 1) should not
be dismissed as untimely.
I. Background
Plaintiff pled guilty to the above‐mentioned state court charges on February 25,
2013. See doc. 1 at 1; see also Plea and Disposition Agreement entered in case no. D‐202‐
CR‐2010‐05820.1 He was sentenced to fifteen years’ imprisonment, five of which were
suspended. See doc. 1 at 1. Judgment on his conviction and sentence was entered June
26, 2013. See Judgment, Partially Suspended Sentence and Commitment entered in case
no. D‐202‐CR‐2010‐05820. In accordance with the plea agreement, Plaintiff did not file
an appeal. See doc. 1 at 6‐10. The Judgment therefore became final no later than July 29,
2013, the first business day following the expiration of the 30‐day appeal period. See
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (explaining that a petitioner’s
judgment becomes final for purposes of § 2254 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). Plaintiff filed a motion to withdraw his
plea on September 10, 2013, but he withdrew that request less than a month later. See
Motions to Withdraw entered September 10, 2013 and October 2, 2013 in case no. D‐202‐
CR‐2010‐05820.
On November 16, 2015, Plaintiff filed a state habeas petition. See RPN: Habeas
Corpus Petition entered in case no. D‐202‐CR‐2010‐05820. The State Court denied the
petition on March 7, 2016, and the New Mexico Supreme Court denied his petition for
writ of certiorari on September 14, 2017. See doc. 1 at 3; NMSC case no. S‐1‐SC‐36524.
The Court has taken 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
in our court and certain other courts concerning matters that bear directly upon the disposition of the
case at hand.”); Stack v. McCotter, 79 F. App’x 383, 391 (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).
1
2
On November 2, 2017, Plaintiff filed the federal § 2254 petition.2 See doc. 1. Two months
later, he filed the Motion asking the Court to appoint counsel to assist with this case.
See doc. 8.
II. Appointment of Counsel
There is no constitutional right to counsel in habeas proceedings. Coronado v.
Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). Unless and until an evidentiary hearing is
warranted, “[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) (citation omitted). The burden is on the petitioner “to convince the
court that there is sufficient merit to his claim to warrant the appointment of counsel.”
Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (internal citations
omitted) (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Considering the above factors, the Court is not convinced that counsel should be
appointed at this time. The claims are not particularly complex, and it is questionable
whether Plaintiff is eligible for federal relief. Further, beyond citing his indigence, lack
The case was initially dismissed because Plaintiff failed to pay his $5.00 filing fee. See docs. 5, 6.
However, the Court set aside the dismissal and reinstated the case after determining the failure resulted
from an administrative error by prison officials. See doc. 11. The case is now ready for initial review
under 28 U.S.C. § 1915 and Habeas Corpus Rule 4.
2
3
of legal knowledge, and mental health history—which, unfortunately, are factors in
most pro se cases—Plaintiff has not demonstrated an inability to prosecute the habeas
petition. The Motion to Appoint Counsel (doc. 8) will therefore be denied.
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)
(2)
habeas petition, § 2244(d)(1)(B);
where a new constitutional right has been recognized by the Supreme
Court, § 2244(d)(1)(C); or
(4)
where unconstitutional state action has impeded the filing of a federal
(3)
while a state habeas petition is pending, § 2244(d)(2);
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)
(citations omitted).
Here, the one‐year limitation period appears to have expired in 2014, over three
years before Plaintiff filed his federal § 2254 petition. Further, the filing of his state
4
habeas petition after the expiration of the limitation period did not restart the clock or
otherwise immunize the untimely federal petition. See Gunderson v. Abbott, 172 F. App’x
806, 809 (10th Cir. 2006) (unpublished) (“A state court [habeas] filing submitted after the
. . . deadline does not toll the limitations period.”). The Court will therefore require
Plaintiff to show cause within thirty (30) days of entry of this Order why his habeas
petition should not be dismissed as untimely. Failure to timely comply may result in
dismissal of the habeas action without further notice. See Hare v. Ray, 232 F.3d 901 (10th
Cir. 2000) (unpublished) (the district court may sua sponte dismiss an untimely Section
2254 petition where the petitioner fails to identify circumstances that would support
tolling).
IT IS THEREFORE ORDERED that, within thirty (30) days of entry of this
Order, Plaintiff must file a response showing cause, if any, why his § 2254 habeas
petition should not be dismissed as untimely.
____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?