United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Stanford Walsh's Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Doc. 1) (“Petition”),
filed pro se on November 21, 2016. Having
meticulously reviewed the pleadings and the record before the
Court, the Court recommends that Mr. Walsh's Petition be
DISMISSED WITH PREJUDICE.
Factual Background and Procedural History
14, 2012, a jury in the Second Judicial District Court of the
State of New Mexico found Mr. Walsh guilty of two counts of
aggravated battery against a household member, two counts of
battery against a household member, one count of child abuse
(1stoffense), and three counts of contributing to
the delinquency of a minor. (Doc. 15-1 at 1-5.) On August 3,
2012, the state trial court sentenced Mr. Walsh to a total
term of imprisonment of eighteen years and five months, less
two days, but suspended six years and five months.
(Id. at 6.) The state trial court issued its
judgment and sentence on August 15, 2012. (Id. at
1.) The following day, Mr. Walsh's counsel moved to
withdraw stating that the attorney/client relationship had
deteriorated to the point that she could no longer
effectively represent him. (Doc. 15-1 at 17.) However, Mr.
Walsh's counsel had advised him before August 16, 2012,
that she would be withdrawing from his case, that he had
“30 days from the date that the judgment and sentence
is filed with the District Court to file an appeal, ”
and she encouraged him to contact the Appellate Division of
the Public Defender's Office and provided their contact
information. (Id. at 18.) Thus, Mr. Walsh filed a
Notice of Appeal in the Second Judicial District Court
pro se on August 16, 2012. (Id. at 19.) He
also filed a Notice of Appeal pro se in the New
Mexico Court of Appeals on August 29, 2012. (Id. at
52.) The trial record was prepared on November 28, 2012
(id. at 92), but no docketing statement was ever
filed in the state Court of Appeals. (Id. at 52.) As
such, the state Court of Appeals issued an Order to Show
Cause, and when Mr. Walsh failed to respond, dismissed the
appeal on March 29, 2013. (Id. at 52-53.) Mr. Walsh
did not file a petition for certiorari with the New Mexico
August 14, 2014, two years after judgment was entered in his
criminal case, Mr. Walsh filed a “Motion for Habeas
Corpus Relief” in the Second Judicial District Court,
in which he argued that the trial court erred in allowing his
defense counsel to withdraw before filing a notice of appeal
and request for appellate counsel. (Id. at 36.) The
Second Judicial District Court summarily dismissed Mr.
Walsh's motion on October 10, 2014, finding that Mr.
Walsh was timely notified of his right to appeal and advised
to contact the Public Defender's Office and therefore no
violation of the constitution or laws of New Mexico or the
United States occurred. (Id. at 78.) Mr. Walsh did
not file a revised petition, and the petition was dismissed
pursuant to NMRA 5-802(G)(1). (Id. at 92.) Mr. Walsh
did not appeal. (Id. at 92-93, Doc. 1 at 5.)
2254 Petition, Mr. Walsh has raised three grounds for relief.
Specifically, Mr. Walsh claims that: (1) his due process
rights were violated under the 14th Amendment of
the United States Constitution, because the police report
associated with his criminal case was procedurally invalid,
and therefore he was prosecuted with “insufficient
evidence” (Doc. 1 at 6-7, 14); (2) the trial court
erred in allowing his defense counsel to withdraw before
filing a Notice of Appeal and docketing statement, and
failing to appoint substitute appellate counsel (id.
at 7-8, 14); (3) he was subjected to double jeopardy by being
charged with: (a) aggravated battery against a household
member and battery against a household member for the same
acts, and (b) aggravated battery against a household member,
aggravated assault against a household member, and battery
against a household member for the same acts. (Id.
at 10-11, 14.) Mr. Walsh admits as to each of his three
claims that he did not raise the issue on appeal in state
court, and that he did not raise the issues outlined in Claim
1 or 3 in a state habeas petition. (Id. at 7, 9,
11.) As to Claim 2, he states that while he did file a
petition for habeas corpus relief on the issue, he did not
appeal from the summary dismissal because he “was
unaware of his right to do so.” (Id. at 9.)
Government responds that Mr. Walsh's current 28 U.S.C.
§ 2254 petition should be dismissed with prejudice
because it is time barred pursuant to 28 U.S.C. §
2244(d)(1) and he is not entitled to equitable tolling under
28 U.S.C. § 2244(d)(2), and he failed to exhaust his
state court remedies prior to filing pursuant to 28 U.S.C.
§ 2254(b)(1)(A). (Doc. 15 at 7-12.) Mr. Walsh filed two
motions to amend his petition on June 28, 2017, and July 6,
2017, respectively. (Docs. 13, 14.) The undersigned denied
his motions to amend, because Mr. Walsh does not assert any
new claims or theories in his motions to amend. (Doc. 16 at
1-2.) Mr. Walsh also requested the Court to appoint counsel
to represent him in this proceeding; however, his request was
denied because there is no constitutional right to counsel in
a habeas proceeding, and a court has discretion not to
appoint counsel when, as the undersigned determined, the
merits of the petitioner's claims are questionable. (Doc.
16 at 2.) Mr. Walsh did not file a reply brief after the
Government filed its answer on July 7, 2017, and this matter
is now before the Court for recommended disposition. D.N.M.
Mr. Walsh's Motion is Untimely
U.S.C. § 2244(d) imposes a one-year limitation period
for state prisoners to file a 28 U.S.C. § 2254 petition.
The limitation period 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.” § 2244(d)(1)(A)). Final
judgment was entered in Mr. Walsh's criminal case on
August 15, 2012. (Doc. 15-1 at 92.) The New Mexico Court of
Appeals dismissed Mr. Walsh's appeal on March 29, 2013.
(Id. at 53.) Mr. Walsh did not petition for a writ
of certiorari and his judgment thus became final for purposes
of § 2244(d) on April 29, 2013. See Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) (finding that a
petitioner's “judgment bec[o]me[s] final when his
time for seeking review with the State's highest court
expire[s].”); and NMRA, Rule
12-502(B) (providing that a petition for writ of certiorari
must be filed within 30 days after final action by the Court
of Appeals). Although Mr. Walsh eventually filed a state
habeas petition on August 14, 2014, that petition did not
toll the one-year limitation period for filing a § 2254
petition, which limitation period expired on April 29, 2014.
present § 2254 petition was filed on November 21, 2016,
nearly two and a half years after the limitation period
expired and four years after judgment was entered in the
criminal case. Furthermore, Mr. Walsh did not initiate state
post-conviction proceedings until August 14, 2014,
four months after the one-year limitation period had expired.
Although the one-year limitation period may be tolled during
the pendency of state post-conviction proceedings pursuant to
§ 2244(d)(2), a state petition filed after the
expiration of the one-year limitation period does not toll
the limitations period. See Gunderson v. Abbott, 172
Fed.Appx. 806, 809 (10th Cir. 2006) (unpublished);
Alvarado v. Smith, No. 17-CV-00266-RJ-GJF, 2017 WL
3267747, at *2 (D.N.M. July 31, 2017) (“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.”). Therefore, Petitioner's
§ 2254 petition is untimely unless the doctrine of
equitable tolling applies.
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.” Holland v.
Florida, 560 U.S. 631, 649 (2010). Equitable tolling is
appropriate only in “rare and exceptional
circumstances, ” Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000), and “the petitioner bears a
strong burden to show specific facts to support his claim of
extraordinary circumstances and due diligence, ”
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008). Such extraordinary circumstances may arise when, for
example, “a prisoner is actually innocent, when an
adversary's conduct-or other uncontrollable
circumstances-prevents a prisoner from timely filing, or when
a prisoner actively pursues judicial remedies but files a
defective pleading during the statutory period.”
Gibson, 232 F.3d at 808 (internal citations
Walsh asserts what may be interpreted as an ineffective
assistance of counsel claim in Claim 2. However, because
there is no “federal constitutional right to counsel in
collateral proceedings, ” the inability to obtain legal
assistance or the provision of ineffective legal assistance
“is simply not an extraordinary circumstance that might
warrant equitable tolling.” Weibly v. Kaiser,
50 Fed.Appx. 399, 402-03 (10th Cir. 2002) (rejecting the
petitioner's argument that the doctrine of equitable
tolling was applicable to the petitioner's § 2254
petition because “his attorney ‘jumped
ship'”) (unpublished); see also Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding
that “ignorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt
filing” and that delays caused by the prison legal
access program “does not relieve [petitioner] from the
personal responsibility of complying with the law”);
Fogle v. Estep, 220 Fed.Appx. 814, 817 (10th Cir.
2007) (noting that the ineffective assistance of
post-conviction counsel does not entitle a petitioner to
equitable tolling) (unpublished). In any event, Mr. Walsh was
previously appointed post-conviction counsel on March 8,
2013, and again on December 11, 2015,  and has himself
made many pro se filings in both state and federal
court. Mr. Walsh's claims of ineffective assistance of
his trial counsel and any other claim that he did not receive
adequate representation in his post-conviction proceedings
simply do not amount to extraordinary circumstances to
support equitable tolling.
extraordinary circumstances existed, Mr. Walsh has failed to
articulate sufficient specific facts in his Motion,
indicating that he has been pursuing his rights diligently
during the period of delay. See Mack v. Falk, 509
Fed.Appx. 756, 760 (10th Cir. 2013) (holding that the
petitioner had failed to establish that he acted with due
diligence because he “provided the district court with
no indication as to how frequently he attempted to
communicate with [his attorney], nor did he articulate the
timing, frequency, or types of assurances he received that
predicated his own inaction”) (unpublished). Mr.
Walsh's initial state appeal was dismissed for his
failure to diligently file a docketing statement and he
failed to challenge the March 2013 dismissal. Mr. Walsh filed
his state habeas petition in August 2014, a year and a half
after the Court of Appeals' dismissal. He did not
challenge the district court's summary dismissal or
otherwise pursue his rights ...