United States District Court, D. New Mexico
DANNY A. CUNNINGHAM, Petitioner,
V. HORTON, Respondent.
ORDER TO SHOW CAUSE
LOURDES A. MARTỈNEZ UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Court on Petitioner Danny A. Cunningham's Petition Under
28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person
In State Custody, filed on March 20, 2017, which challenges
Petitioner's conviction and sentence in State of New
Mexico v. Cunningham, CR-98-123. [Doc. 1] For
the following reasons, the Court will require Petitioner to
show cause why his § 2254 petition should not be
dismissed as untimely under 28 U.S.C. § 2244(d)(1)(A).
following facts are derived from the face Petitioner's
§ 2254 petition. See Kilgore v. Att'y Gen. of
Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008) (noting
that a district court can dismiss a habeas petition sua
sponte if “untimeliness is clear from the face of
the petition”). On October 22, 1998, Petitioner was
convicted of murder in the Fifth Judicial District Court of
the State of New Mexico and, on November 30, 1998, Petitioner
was sentenced to life in prison. See [Doc.
1 at 1]. Petitioner's conviction was affirmed by the
New Mexico Supreme Court on March 9, 2000, and Petitioner did
not file a petition for writ of certiorari in the United
States Supreme Court. See Id. at 2-3. Approximately
eleven years later, on August 29, 2011, Petitioner filed his
first state habeas petition in the Fifth Judicial District
Court of the State of New Mexico. See Id. at 3.
Petitioner's state habeas petition was denied on January
29, 2015 and his writ of certiorari to the New Mexico Supreme
Court was denied on December 22, 2015. See Id. at
28 of the United States Code, section 2244(d) imposes a
“1-year limitation” on “an application for
a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court.” 28 U.S.C. §
2244(d)(1). The one-year limitation begins to run, in
relevant part, from “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.” §
2244(d)(1)(A). The New Mexico Supreme Court affirmed
Defendant's conviction on March 9, 2000, and, therefore,
Defendant's conviction became final ninety-days later, on
June 7, 2000, after the expiration of the time to file a
petition for writ of certiorari in the United States Supreme
Court. See U.S. Sup. Ct. R. 13.1 (providing that a
petition for a writ of certiorari to review a judgment of a
state court of last resort is timely filed “within 90
days after the entry of judgment'); see also Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding,
under § 2244(d)(1)(A), that “a petitioner's
conviction is not final and the one-year limitation period
for filing a federal habeas petition does not begin to run
until - following a decision by the state court of last
resort - after the United States Supreme Court has denied
review, or, if no petition for certiorari is filed, after the
time for filing a petition for certiorari with the Supreme
Court has passed”) (internal quotation marks and
citations omitted). Thus, the one-year limitation period for
Defendant to file a § 2254 petition expired on June 7,
Court recognizes that the one-year limitation period is
subject to statutory tolling during the time in 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).
However, a state habeas petition submitted after the
expiration of the one-year limitation period “does not
toll the limitations period.” Gunderson v.
Abbott, 172 F. App'x 806, 809 (10th Cir. 2006)
(unpublished). In the present case, Petitioner's state
habeas petition was filed on August 29, 2011, more than ten
years after the expiration of the one-year limitation period
and, therefore, Petitioner is not entitled to statutory
tolling under § 2244(d)(2).
Court further recognizes that the one-year limitation period
in § 2244(d) is subject to equitable tolling. See
Holland v. Florida, 560 U.S. 631, 645 (2010).
“Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is appropriate only in “rare and exceptional
circumstances” (Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000)), and “a garden variety claim
of excusable neglect” is not enough to warrant
application of the doctrine (Holland, 560 U.S. at
651 (internal quotation marks and citation omitted)).
on the foregoing, the Court will afford Petitioner an
opportunity to explain why the doctrine of equitable tolling
may be applicable to his § 2254 petition and why it
should not be dismissed as untimely under §
2254(d)(1)(A). Failure timely to respond to this Order or
otherwise show cause may result in the dismissal of
Petitioner's § 2254 petition without further notice.
THEREFORE ORDERED that, within thirty (30) days of the date
of this Order, Petitioner shall file a response showing
cause, if any exists, why his § 2254 petition should not
be dismissed as untimely.
FURTHER ORDERED that, if Petitioner fails to show cause
within thirty days, the Court may dismiss his § 2254
Petition as untimely without further notice.
 In his § 2254 petition,
Petitioner appears to make an equitable tolling argument,
explaining that he was diagnosed with prostate cancer in
October 2014, he spent most of 2015 seeking and waiting for
treatment, and he was transferred to Guadalupe County
Correctional Facility in March 2016. See [Doc.
1 at 23-24]. However, these events occurred more than
thirteen years after the expiration of the one-year