United States District Court, D. New Mexico
JASON P. HINZO, Petitioner,
GERMAN FRANCO, Warden Respondent.
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS
the Court is Jason Hinzo's Petition for Writ of Habeas
Corpus (Doc. 1) filed October 19, 2017. Hinzo is incarcerated
and appears pro se. He asks the Court to modify his
state court sentence to reflect earned good-time credits.
Having reviewed the record, arguments, and relevant law, the
Court will dismiss the Petition but grant leave to amend
25, 2007, Hinzo was convicted by a jury of aggravated assault
on a peace officer and possession of narcotics in New
Mexico's Third Judicial District Court, case no.
D-307-CR-2006-01405. The state court sentenced him to twenty
years imprisonment, followed by a two year term of parole.
Judgment on the conviction and sentence was entered on August
28, 2007. Hinzo filed a direct appeal and sought state habeas
relief, but he was ultimately unsuccessful.
2013, Hinzo filed a federal 28 U.S.C. § 2254 petition
claiming ineffective assistance of counsel, due process
violations, and improper sentence enhancements. (Doc. 1 in
1:13-cv-228 LH-SMV). The Court (Hon. C. Leroy Hansen)
dismissed the § 2254 petition as untimely. (Docs. 28 and
29 in 1:13-cv-228 LH-SMV). Hinzo now brings a new habeas
petition asking that his state court “judgment and
sentence be corrected concerning parole, to allow for proper
credit of earned good time.” (Doc. 1, p. 2). He also
appears to argue that Warden German Franco incorrectly
calculated his good time credits under N.M.S.A. 1978 §
difficult to tell whether Hinzo is challenging the validity
of his sentence pursuant to 28 U.S.C. § 2254 or
attacking its execution under 28 U.S.C. § 2241. To the
extent Hinzo again seeks to disturb the conviction or
sentence under § 2254, the Court cannot grant any
relief. A “district court ha[s] no jurisdiction to
decide [a] successive § 2254 petition without authority
from the court of appeals.” Pease v. Klinger,
115 F.3d 763, 764 (10th Cir. 1997) (citing 28 U.S.C. §
2244(b)(3)(A)). When a successive § 2254 petition is
filed without such authority, the district court may transfer
the matter to the Tenth Circuit “if it determines it is
in the interest of justice to do so under § 1631, or it
may dismiss the motion or petition for lack of
jurisdiction.” In re Cline, 531 F.3d 1249,
1252 (10th Cir. 2008). Factors to consider in evaluating the
proper course of action include:
[W]hether the claims would be time barred if filed anew in
the proper forum, whether the claims alleged are likely to
have merit, and whether the claims were filed in good faith
or if, on the other hand, it was clear at the time of filing
that the court lacked the requisite jurisdiction.
Id. at 1251.
Court already determined that, because judgment on
Hinzo's conviction was entered in 2007, his § 2254
claims are time-barred. His instant § 2254 petition does
not provide grounds to restart the clock, such as a new rule
of constitutional law or newly discovered facts that
demonstrate innocence by clear and convincing evidence.
See 28 U.S.C. § 2244(b)(2). The Court will
therefore dismiss any § 2254 claims for lack of
jurisdiction and deny a certificate of appealability.
extent Hinzo challenges the execution of his sentence under
§ 2241, the current petition is also insufficient to
justify relief. It is unclear why Hinzo believes Warden
Franco miscalculated his good time credits or whether the
warden is even the proper Respondent. The petition reflects
Hinzo is confined at the Penitentiary of New Mexico, while
his address reflects he is housed at the Mike Durfee State
Prison in South Dakota. Hinzo must clarify this apparent
discrepancy, since litigation under § 2241 must be
brought in the district with jurisdiction over the
prisoner's current custodian. See Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004).
Court will allow Hinzo an opportunity to file an amended
§ 2241 petition on the proper form, if he wishes to
pursue such relief. Hinzo must also either prepay the $5.00
filing fee for a § 2241 action or file an application to
proceed in forma pauperis. If Hinzo fails to timely
amend and address the filing fee within thirty (30) days of
entry of this Memorandum Opinion and Order, the Court will
dismiss the case without further notice.
THEREFORE ORDERED that to the extent
Hinzo's habeas petition raises any claims under 28 U.S.C.
§ 2254, such claims are DISMISSED
without prejudice for lack of jurisdiction; and a certificate
of appealability is DENIED.
FURTHER ORDERED that the remainder of the
habeas petition is DISMISSED; but Hinzo is
granted thirty (30) days to file an amended
petition under 28 U.S.C. § 2241 on the
Court's official form and either prepay the $5.00 filing
fee, or alternatively, file an application to proceed in
FURTHER ORDERED that the Clerk's Office
is directed to mail to Hinzo, together with a copy of this
Order, two copies of the form Petition Under 28 U.S.C. §
2241 for a Writ of Habeas Corpus and form ...