Van Duzer v. Simms et al
Filing
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MEMORANDUM OPINION AND ORDER dismissing 1 Petition for 2254 Relief by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GEORGE VAN DUZER,
Petitioner,
vs.
No. CIV 18-0405 JB/LF
WARDEN SIMMS or ACTING
WARDEN HORTON IN INTERIM,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Petitioner’s Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody, filed April 30, 2018
(Doc. 1)(“Petition”). It appears from the Petition’s face that 28 U.S.C. § 2244(d)(1)’s one-year
statute of limitations bars Petitioner George Van Duzer’s § 2254 claims. Accordingly, the Court
dismisses the Petition with prejudice as time-barred.
FACTUAL AND PROCEDURAL BACKGROUND
A Grand Jury returned an indictment against Van Duzer on May 18, 1993 for the firstdegree, premeditated murder of his estranged wife in front of their minor daughter. See Cause
No. D-202-CR 1993-01189, County of Bernalillo, Second Judicial District Court, State of New
Mexico.1 On November 9, 1994, Van Duzer entered into a Plea and Disposition Agreement, in
which he agreed to plead no contest to the charge. The Plea and Disposition Agreement states:
1
The Court has reviewed the official record in Van Duzer’s state court proceedings
through the Supreme Court of New Mexico’s Secured Online Public Access (SOPA) and takes
judicial notice of the records in case no. D-202-CR-1993-01189. See United States v. Ahidley,
486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(concluding that the Court may take judicial notice of
publicly-filed records in this court and other courts concerning matters that bear directly upon the
The state and the defendant understand that the maximum penalties for these
charges are: Count 1 of the Indictment, a 1st Degree Capital Felony, Death or Life
Imprisonment. . . . Under this agreement the defendant will be sentenced to life
imprisonment. If he violates probation or parole, he may be incarcerated for the
balance of the sentence.
Plea and Disposition Agreement at 2. Under the Plea and Disposition Agreement, Van Duzer
also waived his appeal rights. See Plea and Disposition Agreement at 3. The State Court
accepted the Plea and Disposition Agreement and it was filed on November 14, 1994.
The State Court entered Judgment on Van Duzer’s conviction and sentence on April 12,
1995.
See Judgment, Sentence and Commitment.
The Judgment provides that “[t]he
Defendant . . . is sentenced to the custody of the Corrections Department for the term of
life. . . . It is further ordered that the Defendant be placed on parole for 2 years after release.”
Judgment, Sentence and Commitment at 1-2. No appeal was taken from the Judgment, Sentence
and Commitment.
On July 19, 2011, the State Court entered an Order Amending Judgment and Sentence to
Correct Parole Term. The Order Amending Judgment stated:
The Court hereby finds that the Judgment and Sentence needs to be corrected to
reflect the correct parole term applicable at the time of the offense and the
sentencing in this case pursuant to § 31-21-10(B), NMSA 1978. The Court
hereby orders that defendant, upon completion of the life sentence of
imprisonment, shall be required to undergo a minimum period of parole of five
(5) years.
Order Amending Judgment. On January 17, 2018, six and one-half years after entry of the Order
Amending Judgment, Van Duzer filed a Motion for Corrected Judgment and Sentence. The
disposition of the case at hand); Stack v. McCotter, 79 F. App’x 383, 391 (10th Cir.
2003)(unpublished)(holding that a state district court’s docket sheet is an official court record
subject to judicial notice under Fed. R. Evid. 201); Shoulders v. Dinwiddie, 2006 WL 2792671,
at *3 (W.D. Okla. 2006)(Cauthron, J.)(concluding that a court may take judicial notice of state
court records available on the internet including docket sheets in district courts).
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Motion for Corrected Judgment alleges that: Van Duzer was sentenced to thirty years, not life;
sentenced to two years parole, not five years; and all sentencing was entered in 1995 before
changes were made to current sentencing guidelines, and prays “to correct these errors.” Motion
for Corrected Judgment at 1; Petition at 2-3. The State District Court denied the Motion for
Corrected Judgment. See Order, at 1, filed February 23, 2018. The record does not indicate
whether an appeal was taken from denial of the Motion for Corrected Judgment. Van Duzer
appears to contend that he failed to meet the appeal deadline “due to lock down and finances.”
Petition at 3.
In his Petition, Van Duzer challenges his conviction and sentence in Second Judicial
District Cause No. D-202-CR 1993-01189. See Petition at 1. He alleges that he should have
received a thirty-year sentence and two years parole, rather than a life sentence and five years of
parole. See Petition at 3. He raises issues of breach of contract by changing his plea agreement,
use of a false social security number on the Judgment, ineffective assistance of counsel in
entering into the plea agreement, and false arrest and imprisonment. See Petition at 3-5.
LAW REGARDING § 2254 AND THE STATUTE OF LIMITATIONS
The Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2241-55, (“AEDPA”)
governs petitions for writs of habeas corpus and has a one-year statute of limitations. 28 U.S.C.
§ 2244(d). Section 2244(d)(1) states:
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 -(A)
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the
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United States is removed, if the applicant was prevented from
filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). Section 2244(d) further provides: “The 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 shall not be counted toward any period of limitation under this
subsection.” 28 U.S.C. § 2244(d)(2). The one-year AEDPA statute of limitations for filing a
§ 2254 petition begins to run from the time the judgment on the petitioner’s conviction and
sentence becomes final. See 28 U.S.C. § 2244(d). The judgment becomes final at the conclusion
of direct appellate review or expiration of the time for seeking direct appellate review. See 28
U.S.C. § 2254(d)(1)(A).
A state habeas corpus petition filing tolls this one-year statute of limitations. Tolling
occurs, however, only when “a properly filed application for [s]tate post-conviction” relief is
“pending.” See 28 U.S.C. § 2244(d)(2). A state habeas petition is “pending” and tolls the statute
of limitations from the date it is filed until it has achieved final resolution through the state’s
post-conviction procedures. Carey v. Saffold, 536 U.S. 214, 219-20 (2002). See Holland v.
Florida, 560 U.S. 631, 635, 638, (2010). To determine the point at which a petitioner’s state
habeas proceedings become complete, the Court looks to the state’s procedural rules. See Wade
v. Battle, 379 F.3d 1254, 1260-62 (11th Cir. 2004). Tolling ends when the state habeas corpus
petition proceedings are finally concluded. See Holland v. Florida, 560 U.S. at 638 (concluding
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that state habeas corpus proceedings are concluded and the statute of limitations clock starts
when the State Supreme Court issued its mandate). A § 2254 petition filed after the one-year
period has expired is time-barred. See 28 U.S.C. § 2244(d).
The one-year statute of limitations may be subject to equitable tolling. Equitable tolling
is available only when an inmate diligently pursues his claims and demonstrates that
extraordinary circumstances beyond his control caused his failure to file timely. Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir.
2003). Ignorance of the law, ignorance of the limitation period, and inability to obtain legal
assistance do not excuse the failure to file within the statutory time period. See Miller v. Marr,
141 F.3d 976, 977-78 (10th Cir. 1998); Sanders v. Mahaffey, 2000 WL 1730893, at *2 (10th Cir.
Nov. 22, 2000)(unpublished); 2 Washington v. United States, 2000 WL 985885, at *2 (10th Cir.
July 18, 2000)(unpublished).
A court may properly dismiss a time-barred habeas corpus petition under rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 (10th
Cir. 2001). The petition may be dismissed for failure to state a claim upon which relief can be
granted where Petition, on its face, indicates that the statute of limitations bars the claims. See
2
Sanders v. Mahaffey is an unpublished United States Court of Appeals for the Tenth
Circuit opinion, but the Court can rely on an unpublished Tenth Circuit opinion to the extent its
reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C.
(“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 . . . citation to unpublished opinions is not favored. . . . However, if an
unpublished opinion . . . 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). The Court concludes that Sanders v. Mahaffey, Stack v.
McCotter, and Washington v. United States have persuasive value with respect to a material
issue, and will assist the Court in its preparation of this Memorandum Opinion and Order.
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Jones v. Bock, 549 U.S. 199, 214-15 (2007)(noting that a complaint may be subject to dismissal
under Rule 12(b)(6) when an affirmative defense appears on its face).
ANALYSIS
To the extent Van Duzer alleges errors in his Plea and Disposition Agreement, or
ineffective assistance of counsel in entering the Plea Agreement, Van Duzer had those arguments
available from April 12, 1995 -- the date Judgment was entered. Any claim of error in the Order
Amending Judgment and Sentence arose when the Order was entered on July 19, 2011. Petition
at 1-5. Section 2244(d)(1)(A)’s limitation period is applicable here, so the statute of limitations
on Van Duzer’s claims began running either on April, 1995, or July, 2011, and expired one year
later in April, 1996, or July, 2012. See 28 U.S.C. § 2244(d)(1)(A).
Although Van Duzer filed a state post-conviction Motion for Corrected Judgment and
Sentence, it is not clear that the Motion for Correct Judgment was a properly filed state habeas
corpus petition. Even if it were a properly-filed habeas corpus petition, he waited more than
twenty years after the Judgment was entered and over six years after the Order Amending
Judgment and Sentence became final, before filing the Petition. The state motion proceedings
did not toll the running of the statute of limitations. See Carey v. Saffold, 536 U.S. at 219-20;
Holland v. Florida, 560 U.S. at 635, 638.
That Van Duzer did not learn about potential legal
remedies until 2011 does not constitute the type of extraordinary circumstances that would
support equitable tolling of the statute of limitations in this case. See Marsh v. Soares, 223 F.3d
at 1220; Burger v. Scott, 317 F.3d at 1141. Therefore, the § 2244(d)’s one-year statute of
limitations expired before he filed his April 30, 2018, Petition in this Court, and his claims under
§ 2254 are time-barred. On its face, the Petition fails to state a claim upon which relief can be
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granted, and the Court will dismiss it. Fed. R. Civ. P. 12(b)(6); Jones v. Bock, 549 U.S. at 21415.
Under rule 11 of the Rules Governing Section 2254 Cases, the Court also determines that
Van Duzer has failed to make a substantial showing of denial of a constitutional right. The Court
will deny a certificate of appealability. See 28 U.S.C. § 2253(c).
IT IS ORDERED that the Petitioner’s Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 by a Person in State Custody, filed April 30, 2018 (Doc. 1), is dismissed
with prejudice, and a Certificate of Appealability is denied.
________________________________
UNITED STATES DISTRICT JUDGE
Parties:
George Van Duzer
Lea County Correctional Facility
Hobbs, New Mexico
Petitioner pro se
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