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Costelon v. State

United States District Court, D. New Mexico

November 3, 2017

FRANK COSTELON, Petitioner,
v.
STATE OF NEW MEXICO, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2254 Proceedings on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Frank Costelon on December 5, 2016 (“Petition”) (Doc. 1). The Court will dismiss the Petition for lack of jurisdiction because Petitioner Costelon is not in state custody pursuant to a judgment of a state court and on the grounds that the Petition is barred by the statute of limitations of 28 U.S.C. § 2244(d)(1).

         Costelon is currently incarcerated at the United States Penitentiary, Leavenworth, Kansas, on a federal conviction and sentence entered against him in the United States District Court for the Western District of Texas. See United States of America v. Frank Emmanuel Costelon, No. CR 11-01895. In this proceeding, he does not seek to challenge his federal conviction or sentence. Instead, he seeks to collaterally attack a 2003 conviction by the New Mexico state courts. (Doc. 1 at 1).

         On February 13, 2003, Costelon was indicted by a New Mexico Grand Jury on charges of distribution of marijuana. Costelon was convicted pursuant to a guilty plea and Judgment was entered on July 28, 2003. Costelon was sentenced to three years of imprisonment, followed by two years of parole. See State of New Mexico v. Frank Emanuel Costelon, State of New Mexico, County of Dona Ana, Third Judicial District case no. D-307-CR-2003-00126. The Court takes judicial notice of the records in case no. D-307-CR-2003-00126. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (The Court may take judicial notice of publicly filed records in this court and other courts concerning matters that bear directly upon the disposition of the case at hand); Shoulders v. Dinwiddie, 2006 WL 2792671 (W.D.Okla.2006) (court may take judicial notice of state court records available on the world wide web including docket sheets in district courts).

         Almost ten years after entry of the judgment in case no. D-307-CR-2003-00126, Costelon filed a Petition for Writ of Coram Nobis to Set Aside Judgment of Conviction Pursuant to Rule 1-060(B) N.M.R.A. The Petition was summarily dismissed by the State District Judge on February 18, 2013 based on waiver of collateral review by Costelon's entry of a guilty plea. On February 7, 2014, the New Mexico Court of Appeals reversed the summary dismissal and remanded the matter to the District Court for consideration of the Coram Nobis Petition on the merits. See D-307-CR-2003-00126. The District Court then substantively reviewed and dismissed the Petition on its merits. Costelon appealed the ruling to the New Mexico Court of Appeals, which affirmed the District Court's dismissal on September 29, 2015. (Doc. 2-2 at 2-7). Costelon filed a request for rehearing, which the Court of Appeals granted before issuing a substituted decision of affirmance on November 4, 2015. See D-307-CR-2003-00126. The New Mexico Supreme Court denied Costelon's Petition for Writ of Certiorari on January 6, 2016. (Doc. 2-3 at 2-3). Costelon then filed his § 2254 Petition in this Court on December 5, 2016. (Doc. 1).

         I. Costelon is Not In Custody Pursuant to a State Judgment: Section 2254(a) requires a petitioner to be “in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.” The in-custody requirement of § 2254(a) is jurisdictional. Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). A petitioner must satisfy the custody requirement at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7 (1998).

         A prisoner need not, however, show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491 (1989) (per curiam). Habeas corpus relief under § 2254 is available for prisoners released on parole or personal recognizance. Jones v. Cunningham, 371 U.S. 236, 242- 43 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 346 (1973) (personal recognizance). Such relief is also available to prisoners serving consecutive sentences, aliens seeking entry into the United States, and persons “questioning the legality of an induction or enlistment into the military service.” Garlotte v. Fordice, 515 U.S. 39, 46-47 (1995); Duncan v. Walker, 533 U.S. 167, 176 (2001); Jones, 371 U.S. at 240 & n. 9, 11.

         The writ of habeas corpus is available in situations where a state-court criminal conviction has subjected the petitioner to “severe restraints on [his or her] individual liberty.” Hensley, 411 U.S. at 351. A restraint is severe when it is “not shared by the public generally.” Jones, 371 U.S. at 240. But the remedy of a writ of habeas corpus is not “generally available ... for every violation of federal rights.” Lehman v. Lycoming Cnty. Children's Servs. Agency, 458 U.S. 502, 510 (1982). “Thus, the collateral consequences of a conviction, those consequences with negligible effects on a petitioner's physical liberty of movement, are insufficient to satisfy the custody requirement.” Virsnieks v. Smith, 521 F.3d 707, 718 (7th Cir.2008) (collecting cases). Effects, such as the payment of restitution or a fine, inability to vote, hold public office, or serve as a juror, are not the sort of significant restraint on liberty contemplated in the custody requirement of the federal habeas statutes. Erlandson v. Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir.2008); Maleng, 490 U.S. at 491-92; Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.1998); Calhoun v. Attorney Gen. of Colorado, 745 F.3d 1070, 1073-74 (10th Cir. 2014).

         Costelon has completed his sentence in D-307-CR-2003-00126 and is no longer incarcerated or on probation for the conviction in that case. Nor does Costelon allege any other ongoing restraint on his liberty as a consequence of the conviction. Costelon is not “in custody pursuant to the judgment of a State court” as required by 28 U.S.C. § 2254. As a result, this Court lacks jurisdiction and will dismiss Costelon's Petition. Mays v. Dinwiddie, 580 F.3d at 1139.

         II. Costelon's Claims are Barred by the Statute of Limitations: Even if Costelon is in custody for purposes of § 2254, his Petition is subject to dismissal because it was not filed within the one-year statute of limitations governing § 2254 proceedings. Petitions for a writ of habeas corpus by a person in state custody are governed by a one-year statute of limitations. 28 U.S.C. § 2244(d). Section 2244(d)(1) states:

“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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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