Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perea v. Hatch

United States District Court, D. New Mexico

July 28, 2017

LARRY PEREA, Petitioner,
v.
TIMOTHY HATCH, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court, under rule 4 of the Rules Governing Section 2254 Proceedings and rule 12(b)(6) of the Federal Rules of Civil Procedure, on the Petitioner's Petition for Writ of Habeas Corpus, filed August 5, 2016 (Doc. 1)(“Petition”). The Court concludes that 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations bars Petitioner Larry Perea's claims under 28 U.S.C. § 2254. Accordingly, the Court will dismiss the Petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Court has reviewed the official record in Perea's state court proceedings through the Supreme Court of New Mexico's Secured Online Public Access service. Pursuant to rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the official New Mexico court records in Perea's two state criminal cases, Nos. D-202-CR-200800239 and D-202-CR-2008-06058, Second Judicial District, County of Bernalillo, State of New Mexico. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(stating that courts have “discretion to take judicial notice of publicly-filed records . . . and certain other courts concerning matters that bear directly upon the disposition of the case at hand”); Shoulders v. Dinwiddie, 2006 WL 2792671, at *3 (W.D. Okla. 2006)(Cauthron, J.)(noting that courts may take judicial notice of state court records available on the internet, including district court docket sheets); Stack v. McCotter, 2003 WL 22422416 (10th Cir. 2003)(unpublished)(finding that a state district court's docket sheet was an official court record subject to judicial notice under rule 201). Perea's Petition, the attachments to the Petition, and the official New Mexico court records show the following.

         A Grand Jury indicted Perea for Trafficking a Controlled Substance on January 16, 2008, in Second Judicial District case No. D-202-CR-200800239. Perea entered a no-contest plea on February 4, 2009, and was sentenced to nine years of imprisonment on May 11, 2009. See State v. Perea, No. D-202-CR-200800239, Judgment, Sentence & Commitment, filed May 11, 2009. Perea did not appeal from the judgment in that case and has never sought collateral review of his conviction or sentence.

         In a separate state criminal proceeding, Second Judicial District Court case No. D-202-CR-200806058, a jury convicted Perea of voluntary manslaughter and Possession of a Controlled Substance. The judgment on his conviction in that case was entered on February 7, 2011. See State v. Perea, No. D-202-CR-200806058, Judgment, Sentence and Commitment, filed February 7, 2011. Perea filed a direct appeal from the judgment, and, on June 15, 2011, the Court of Appeals of New Mexico affirmed his conviction. Perea did not petition the Supreme Court of New Mexico to review the Court of Appeals of New Mexico's decision. On September 8, 2011, a supplemental information was filed charging Perea as a habitual offender and seeking a firearm enhancement to the sentence on his manslaughter and possession convictions. See State v. Perea, No. D-202-CR-200806058, Supplemental Information, filed September 8, 2011. Perea was convicted as a habitual offender, and an amended judgment was entered on December 6, 2012, sentencing him to a total of sixteen years and six months imprisonment. See State v. Perea, No. D-202-CR-200806058, Amended Judgment, Sentence and Commitment, filed December 6, 2012. Perea did not appeal the amended judgment.

         Instead, on January 28, 2013, Perea filed a motion to amend the judgment, asking that the sentence be amended to credit him for time served before sentencing on the habitual offender charges. See State v. Perea, No. D-202-CR-200806058, Motion to Amend Judgment and Sentence, filed January 28, 2013. The district court denied his motion on April 2, 2013. See State v. Perea, No. D-202-CR-200806058, Order, Application, Petition or Motion Denied, filed April 2, 2013. On July 29, 2014, Perea filed a motion to proceed in forma pauperis and to obtain copies of his trial transcripts. See State v. Perea, No. D-202-CR-200806058, Petition for Trascripts [sic] of Trial and Other Documents Forthwith, filed July 29, 2014. Then, on September 29, 2014, Perea filed a petition for writ of mandamus to compel the provision of transcripts. See State v. Perea, No. D-202-CR-200806058, Petition for Writ of Mandamus, filed September 29, 2014. The district court dismissed his petition on October 24, 2014. See State v. Perea, No. D-202-CR-200806058, CLS: Close Miscellaneous, filed October 24, 2014. Two years later, on October 27, 2016, Perea filed a petition for a writ of habeas corpus in state court. See State v. Perea, No. D-202-CR-200806058, Petition for Writ of Habeas Corpus, filed October 27, 2016. The district court denied that petition on January 12, 2017. See State v. Perea, No. D-202-CR-200806058, Procedural Order on Petition for Writ of Habeas Corpus, filed January 12, 2017. Perea did not appeal any of the state district court's rulings other than the direct appeal from the February 7, 2011, judgment.

         Perea filed his Petition in federal district court on August 5, 2016, before filing his habeas corpus petition in state court. Perea states the factual basis for his Petition as follows: “Due to the 1 yr firearm enhancement added to the basic sentence of voluntary manslaughter I shouldn't received [sic] ¶ 4 yr habitual for Count 1 or Count 2 unless the firearm enhancement was never initiated.” Petition ¶ 3, at 2. Perea requests that: “[T]he 4 yr Habitual from Count #1 voluntary manslaughter (1 yr. firearm enhancement 4 yr HB) be recanted & dismissed from my 16 ½ yr sentence to leave a total of 12 ½ yrs.” Petition ¶ 7, at 2.

         Perea has also filed a Request for Appointment of Counsel, filed November 28, 2016 (Doc. 5)(“Motion for Counsel”). He appears to request appointment of counsel to represent him in a civil tort proceeding in state court. See Motion for Counsel at 1-2. The Court does not have any authority to appoint counsel in a state court proceeding. Even if Perea's request was directed to this case, however, the Court denies the request as moot in light of the Petition's dismissal.

         LAW REGARDING THE ONE-YEAR STATUTE OF LIMITATIONS ON § 2254 CLAIMS

         Perea used a state-court form for his habeas corpus petition, rather than a federal habeas petition form. The relief that he requests, however, is modification of his state court sentence. See Petition at 2. Where a petition challenges the legality of present confinement pursuant to a state court conviction, the court liberally construes the action as seeking a writ of habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). As a consequence, the Court construes Perea's Petition as a petition for relief from a conviction or sentence by a person in state custody under 28 U.S.C. § 2254.

         Petitions for a writ of habeas corpus by a person in state custody under 28 U.S.C. § 2254 are governed by a one-year statute of limitations. See 28 U.S.C. § 2244(d). Section 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 --

(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 United States is removed, if the applicant was ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.