United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
AND PROCEDURAL BACKGROUND
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2003)(unpublished)(finding that a state district court's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.
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.
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.
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,
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.
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
REGARDING THE ONE-YEAR STATUTE OF LIMITATIONS ON § 2254
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. §
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:
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