Aponte-Delgado v. Martinez et al
Filing
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MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson dismissing Jose Aponte-Delgados habeas corpus petition 1 ; a certificate of appealability is denied. (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_______________
JOSE ALEJANDRO APONTE-DELGADO,
Petitioner,
v.
No. 2:18-cv-00369 WJ/LF
RICHARD MARTINEZ and
ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO,
Respondents.
MEMORANDUM OPINION AND ORDER
DISMISSING HABEAS PETITION
Before the Court is Jose Aponte-Delgado’s habeas corpus petition under 28 U.S.C. § 2254
(Doc. 1). Aponte-Delgado is an inmate at the Otero County Prison Facility (OCPF) and is
proceeding pro se. He asks the Court to vacate his state sentence for criminal sexual penetration
and contributing to the delinquency of a minor based on, inter alia, due process violations. For the
reasons below, the Court will dismiss the petition as untimely.
BACKGROUND
Aponte-Delgado pled guilty to the above charges in 2008. He was sentenced to 16.5 years
imprisonment. The state court entered Judgment on his conviction and sentence on February 1,
2008. Aponte-Delgado did not appeal. The Judgment therefore became final no later than March
4, 2008, when the 30-day 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 expiration of the
state appeal period); NMRA, Rule 12-201 (providing that a notice of appeal must be filed within 30
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days after entry of the judgment); NMRA, Rule 1-006(A)(1)(c) (explaining that when a 30-day
appeal period falls on a Sunday, the period expires at the end of the next business day). The state
court amended the Judgment on November 27, 2013 to reflect “an indeterminate period of parole of
between five (5) and twenty (20) years.” Doc. 1 at 21. With the exception of a few parole
violations, there was no case activity for the next four years. See generally State of New Mexico v.
Aponte-Delgado, Case No. D-202-CR-2006-04977.1
On February 8, 2018, Aponte-Delgado filed a state habeas petition. The state court denied
the petition on February 16, 2018, and the New Mexico Supreme Court denied his certiorari on
March 23, 2018. See Doc. 1 at 6; ORD: On Writ/Habeas Corpus and ORD: Supreme Court in
Case No. D-202-CR-2006-04977. On April 19, 2018, Aponte-Delgado filed the federal § 2254
petition.
DISCUSSION
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, §
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The Court took 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 …
concerning matters that bear directly upon the disposition of the case at hand”).
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2244(d)(1)(C).
The petition reflects the one-year period expired no later than December, 2014 (i.e., one
year after the Amended Judgment became final),2 Aponte-Delgado filed his § 2254 petition over
three years later on April 19, 2018. By a Memorandum Opinion and Order entered May 10, 2018,
the Court therefore directed Aponte-Delgado to show cause why his § 2254 petition should not be
dismissed as untimely. In response, Aponte-Delgado argues equitable tolling applies because
English is his second language and he lacked legal assistance/research materials. He also argues
he was confined in the mental health unit between 2012 and 2014, and the state court denied him
due process by amending his criminal judgment.
Equitable tolling “is only available when an inmate diligently pursues his claims and
demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). “[A]n inmate bears a strong
burden to show specific facts to support his claim of extraordinary circumstances….” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). The inmate must provide “specificity regarding
the alleged lack of access and the steps he took to diligently pursue his federal” petition. Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Aponte-Delgado’s claims that he lacked legal resources fail as a matter of law. The Tenth
Circuit has held that the lack of counsel is “not an extraordinary circumstance … because there is
no federal constitutional right to counsel in collateral proceedings.” Weibley v. Kaiser, 50 Fed.
App’x 399, 403 (10th Cir. 2002). See also Marsh, 223 F.3d at 1220 (lack of timely assistance
from prison legal access attorney insufficient to support equitable tolling). A bald claim “of
2
It is unclear whether the amendment triggered a new one-year limitation period under 28 U.S.C. §
2244(d). The Court need not resolve the issue because the petition appears to be time-barred based on the
later date.
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insufficient access to relevant law … is [similarly] not enough to support equitable tolling.”
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). See also Miller, 141 F.3d at 978 (“It is not
enough to say that the … facility lacked all relevant statutes and case law or that the procedure to
request specific materials was inadequate”); Parker v. Jones, 2008 WL 63304 (10th Cir. 2008)
(holding mere allegations regarding lack of access to library cannot support equitable tolling).
Under certain circumstances, a language barrier or mental health confinement can support
equitable tolling. See Yang, 525 F.3d 925, 930 (10th Cir. 2008); Reupert v. Workman, 45 Fed.
App’x 852, 854 (10th Cir. 2002); Sandoval v. Jones, 447 Fed. App’x 1 (10th Cir. 2011).
However, the untimely filing must be traceable to those issues. Id. Aponte-Delgado “has not set
forth what actions he pursued to secure assistance with his language barrier,” nor has he explained
how it prevented timely filing. Yang, 525 F.3d at 930. Further, even crediting his assertions that
he was heavily medicated in a mental health unit between 2012 and 2014, “he still falls short of
explaining why it took [over] three years to lodge his petition” after his release. Morgan v. Addison,
574 Fed. App’x. 852 (10th Cir. 2014). See also Reupert v. Workman, 45 Fed. App’x 852, 854
(10th Cir. 2002) (To obtain tolling based on mental health issues, the petitioner must describe with
specificity how the impairment prevented the timely pursuit of his own claims).
Finally, Aponte-Delgado’s due process arguments go to the merits of his § 2254 petition
and cannot toll the limitation period. It is well established that a petitioner “must show that he can
satisfy the procedural requirements of … [§ 2244]” before the Court will “address[] the merits of
his claim.” U.S. v. Greer, 881 F.3d 1241, 1245 (10th Cir. 2018). Equitable tolling is therefore
not warranted, and the petition must be dismissed as untimely. See 28 U.S.C. § 2244(d)(1)(A).
The Court will also deny a certificate of appealability under Habeas Corpus Rule 11, as
Aponte-Delgado failed to make a substantial showing that he has been denied a constitutional right.
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IT IS ORDERED that Jose Aponte-Delgado’s habeas corpus petition under 28 U.S.C. §
2254 (Doc. 1) is DISMISSED WITH PREJUDICE; a certificate of appealability is DENIED;
and judgment will be entered.
SO ORDERED.
______________________________________
CHIEF UNITED STATES DISTRICT JUDGE
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