United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL
matter is before the Court, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Court, on Petitioner Arturo Aivarado's response to
Magistrate Judge Gregory J. Fouratt's Order To Show Cause
[Doc. 7] and Petitioner's Motion to Appoint Counsel [Doc.
8]. On April 19, 2017, Magistrate Judge Fouratt ordered
Petitioner to show cause why his amended petition for writ of
habeas corpus pursuant to 28 U.S.C, § 2254 should not be
dismissed as untimely under § 2244(d)(1)(A), because it
was filed more than six years after Petitioner's state
conviction had become final. [Doc. 6] In his response,
Petitioner appears to request equitable tolling based on
mental incompetence. [Doc. 7] The Court concludes that
Petitioner is not entitled to equitable tolling and,
therefore, his amended § 2254 petition will be dismissed
as untimely, his motion for appointment of counsel will be
denied as moot, a certificate of appealability will be
denied, and judgment will be entered.
April 10, 2017, Petitioner filed an amended § 2254
petition challenging his conviction and sentence in State
of New Mexico v. Aharado, D-202-CR-200602854. [Doc. 4]
According to Petitioner's amended petition, on April 22,
2009, Petitioner was convicted in the Second Judicial
District of the State of New Mexico of felony murder and
criminal sexual penetration and sentenced to life
imprisonment, plus eighteen years. [Doc. 4] Petitioner did
not appeal from the judgment of conviction or the sentence.
In his amended § 2254 petition, Petition challenges the
validity of his state conviction and sentence, contending
that: (1) he was incompetent to plead guilty due to mental
retardation; and (2) his trial counsel was ineffective
because he "failed to present evidence that Petitioner
is mental retarded due to gunshot to the head." [Doc, 4]
Court will take judicial notice of the official state court
record in Petitioner's habeas case in the Second Judicial
District, which is available through the New Mexico Supreme
Court's Secured Online Public Access (SOPA) system.
See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (noting that
"federal courts, in appropriate circumstances, may take
notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings
have a direct relation to matters at issue"); Stack
v. McCotter, 79 F. App'x 383, 391 (10th Cir. 2003)
(taking judicial notice of the state district court docket
sheet in a related mandamus proceeding) (unpublished). The
state court docket reflects that on August 31, 2016, the
Second Judicial District Court received for review
Petitioner's Petition For Writ of Habeas Corpus, which
raised two claims: (1) ineffective assistance of counsel due
to "counsel's failure to inquire into
Petitioner's competency after learning of
Petitioner's mental retardation due to gunshot to the
head"; and (2) actual innocence. The Post-Conviction
Habeas Unit Law Offices of the Public Defender reviewed
Petitioner's state habeas petition pursuant to NMRA Rule
5-802(G)(1) of the Rules of Criminal Procedure for District
Courts and determined that it was "not a proceeding that
a reasonable person with adequate means would be willing to
bring at a person's own expense," because:
4) In the instant matter, Petitioner contends that his trial
attorney was ineffective for failing to "inquire into
Petitioner's competency." Petitioner is in error.
The competency review process began on March 20, 2008 and
concluded via hearing on January 8, 2009. An order deeming
Petitioner competent was filed on January 9, 2009. Therefore,
competency was both raised and thoroughly litigated.
5) Additionally, Petitioner apparently conjoins a vague claim
of actual innocence to his previous erroneous supposition
that competence was not investigated by his trial attorney.
Seemingly, Petitioner posits that due to some form of mental
disability/brain damage he is actually innocent of the
charges to which he plead. Petitioner's claim is devoid
of particularized facts, entirely conclusory and fails to
make a prima facie showing of actual innocence. "A
petitioner asserting a freestanding claim of innocence must
convince the court by clear and convincing evidence that no
reasonable juror would have convicted him in light of new
evidence." Montoya v. (Jlibctrri, 163 P.3d 476,
142 N.M. 89, 2007 N.M.S.C. 35 (2007). Here, Petitioner
entirely fails to make a prima facie showing of actual
innocence. Dissatisfaction with the results obtained through
the efforts of an attorney does not provide a basis for
post-conviction relief. State v. Apodaca, 432 P.2d
256, 78 N.M. 412(1976).
September 29, 2016, the district court summarily dismissed
Petitioner's state habeas petition because
"Petitioner fails to state a claim upon which relief can
be granted." On October 24, 2016, Petitioner filed a
petition for writ of certiorari in the New Mexico Supreme
Court, which is currently pending. See Alvardo v.
Lytle, S-1 -SC-36159.
April 19, 2017, Magistrate Judge Gregory J. Fouratt ordered
Petitioner to show cause why his amended § 2254 petition
should not be dismissed as untimely. [Doc. 6] Magistrate
Judge Fouratt explained that 28 U.S.C. § 2244(d) imposes
a one-year limitation period on § 2254 petitions, which
begins to run, in relevant part, from "the date on which
the judgment became final by conclusion of direct review or
the expiration of the time for seeking such review."
[Doc. 6 at 2 (quoting § 2244(d)(1)(A))].
Petitioner's conviction became final on May 22,
2009-thirty days after the expiration of the time to file a
direct appeal from the judgment of conviction. See
United States v. Prows, 448 F.3d 1223, 1227-28
(10th Cir. 2006); NMRA Rule 12-201(A)(2). Therefore, the
one-year limitation period for filing a § 2254 petition
expired on May 22, 2010-more than six years before the filing
of the present § 2254 proceeding. Although Petitioner
submitted a state habeas petition after the
expiration of the one-year limitation period,
Petitioner's state habeas petition does not toll the
limitation period. See Gimderson v. Abbott, 172 F.
App'x 806, 809 (10th Cir. 2006) (unpublished). Magistrate
Judge Fouratt informed Petitioner that, absent equitable
toiling, his amended § 2254 petition is time-barred and
afforded Petitioner "an opportunity to explain why the
doctrine of equitable tolling may be applicable to his
amended § 2254 petition." [Doc. 6 at 3]
response, Petitioner submitted a letter that appears to seek
equitable tolling based on mental incompetence. [Doc. 7]
Specifically, Petitioner contends that he is mentally
disabled due to a gunshot wound to his head that caused
permanent brain damage. [Doc. 7] Additionally, Petitioner
contends that he suffers from seizures, major depression,
dementia, memory loss, mental retardation, auditory
hallucinations, psychosis, bipolar disorder, paranoid
schizophrenia, and mood swings. [Doc. 7] On June 8, 2017,
Petitioner filed a motion for appointment of counsel, asking
the Court to appoint counsel to represent him in this
proceeding because he has "been diagnosed as mentally
retarded due to a gunshot in the head." [Doc. 8]
United States Court of Appeals for the Tenth Circuit has
recognized that "equitable tolling may be appropriate
where there is adequate proof of incompetence."
Renpert v. Worbnan, 45 F. App'x 852, 854 (10th
Cir. 2002) (unpublished). "Equitable tolling of a
limitations period based on mental incapacity is warranted
only in 'exceptional circumstances' that may include
an adjudication of incompetence, institutionalization for
mental incapacity, or evidence that the individual is not
'capable of pursing his own claim' because of mental
incapacity." Id. (quoting Blester v.
Midwest Health Serv., Inc., 77 F.3d 1264 (10th Cir.
1996)); see also Del Rantz v. Hartley, 577 F.
App'x 805, 810 (10th Cir. 2014) (noting that "mental
impairment is noiper se a reason to toll a statute
of limitations" and that "federal courts equitably
toll the limitations period only when there is a severe or
profound mental impairment, such as that resulting in
institutionalization or adjudged mental incompetence")
(unpublished). "Allegations of mental incompetence alone
.., are generally insufficient to warrant equitable
tolling." Wiegand v. Zavares, 320 F. App'x
837, 839 (10th Cir. 2009) (unpublished).
Petitioner may suffer from various mental disorders, he has
failed to adduce adequate evidence of mental incompetence to
warrant equitable tolling, There is no indication that
Petitioner has ever been adjudicated mentally incompetent,
institutionalized for mental incapacity, or found to be
incapable of pursuing his own claims because of mental
incapacity. Indeed, the state court record belies
Petitioner's assertions of mental incompetence. In his
state court habeas proceedings, the district court summarily
dismissed Petitioner's claim that he was mentally
incompetent at the time of his trial, finding that
Petitioner's claim was not supported by the files,
pleadings, and records. "[T]he state trial court's
findings rejecting the competency claim in denying
post-conviction relief may not be lightly disregarded."
Reupert, 45 F. App'x at 854 (citing 28 U,S.C.
§ 2254(e)(1)). Therefore, the Court finds that
Petitioner has failed to fulfill his burden to establish the
existence of exceptional circumstances. Even if exceptional
circumstances existed, Petitioner has failed to allege any
facts indicating that he has acted with due diligence in the
pursuit of his federal claims. See Yang v.
Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (holding
that to be entitled to equitable tolling, a petitioner must
allege "with specificity the steps he took to diligently
pursue his federal claims") (internal quotation marks
and citation omitted). Accordingly, Petitioner's amended
§ 2254 petition will be dismissed with prejudice as
untimely and his motion for appointment of counsel will be
denied as moot.
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a) of the Rules Governing Section
2254 Cases In The United States District Courts. To be
entitled to a certificate of appealability, Petitioner must
make "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2).
"A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). Reasonable
jurists could not debate the Court's conclusion that
Petitioner's § 2254 petition is untimely under
§ 2244(d)(1) or that he is not entitled to equitable
tolling of the limitations period and, therefore, a
certificate of appealability will be denied.
THEREFORE ORDERED that Petitioner's amended § 2254
petition [Doc. 4] is DISMISSED with prejudice as untimely;
Petitioner's motion to appoint counsel [Doc. 6] is DENIED
as moot; a ...