United States District Court, D. New Mexico
WARREN B. MARKER, Petitioner,
V. HORTON, Warden, and HECTOR BALDERAS, Attorney General of the State of New Mexico, Respondents.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Warren Marker's
Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus (“Petition”), filed May 1, 2017. (Doc. 1).
Also before the Court is Marker's Motion for Continuance,
filed October 27, 2017. (Doc. 6). Having reviewed the
submissions sua sponte under 28 U.S.C. § 2254
and Habeas Corpus Rule 4, the Court will deny the Motion and
dismiss the Petition without prejudice.
case, Marker challenges his 2014 state court conviction for
larceny and the unlawful taking of a vehicle in violation of
N.M.S.A. 1978, §§ 30-16-1(E) and 30-16D-1. (Doc. 1)
at 2. Marker appealed the conviction, arguing the jury
instruction on the latter offense could be read to violate
the prohibition against double jeopardy. (Doc. 1-2) at 1. On
August 10, 2016, the New Mexico Court of Appeals vacated
Marker's conviction for the unlawful taking of a vehicle
and remanded the case for re-sentencing. Id. at 2.
filed the federal Petition on May 1, 2017. He asserts the
state court mishandled evidence; his counsel rendered
ineffective assistance; and he was denied his right to a
speedy trial. (Doc. 1) at 6, 7, and 9. The Petition indicates
he did not raise these issues on appeal or in a state habeas
proceeding. Id. at 3, 6-8; (Doc. 1-2) at 1.
According to Marker, he would prefer to prosecute his habeas
claims in federal court because he feels the state courts are
not responding to him. (Doc. 1) at 5. He also claims he
attempted to send a habeas petition to the state district
court about seven weeks before he filed the federal Petition,
but the state “court refused to receive [the]
writ.” (Doc. 1) at 3.
Memorandum Opinion and Order entered September 27, 2017, the
Court required Marker to show cause why his Petition should
not be dismissed for failure to exhaust all available state
court remedies, as required by 28 U.S.C. §
2254(b)(1)(A). (Doc. 5). In response, Marker filed the Motion
seeking a 60-day extension of the show cause deadline. (Doc.
6) at 2. The Motion recites that he filed a habeas petition
with New Mexico's Twelfth Judicial District Court on
October 5, 2017, a copy of which was returned with the file
stamp “received for review on 10/10/17.”
Id. Marker “is hopeful that the [state habeas]
process will continue to move forward.” Id.
However, he asks the Court to:
maintain its involvement for the 60 day continuance he is
asking for. He is more than confident that at the end of the
time requested[, ] if the state court has not proceeded in
accordance with Rule 5-802 NMRA[, ] [governing the screening
of habeas petitions] … [he] will be more than able to
show cause why this Court should rule on the 2254 Petition.
Id. The Motion also argues the merits of his federal
habeas claims. Id. at 2-4.
2254(b)(1)(A) requires state prisoners to exhaust all
available state court remedies before this Court can rule on
a federal habeas petition. See also O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) (A “state
prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court
in a habeas petition”). “The exhaustion
requirement is satisfied if the federal issue has been
properly presented to the highest state court, either by
direct review of the conviction or in a postconviction
attack.” Dever v. Kansas State Penitentiary,
36 F.3d 1531, 1534 (10th Cir. 1994). The requirement can only
be excused where “exhaustion would have been futile
because either ‘there is an absence of available State
corrective process' or ‘circumstances exist that
render such process ineffective to protect the rights of the
applicant.'” Selsor v. Workman, 644 F.3d
984, 1026 (10th Cir. 2011) (quoting 28 U.S.C. §
Motion, Marker confirms that none of his habeas claims have
been exhausted. It is also clear that exhaustion is not
futile, as his state habeas petition is pending review in the
Twelfth Judicial District Court. Nevertheless, Marker asks
this Court to remain involved for at least 60 more days,
essentially to ensure the state court performs its screening
function to his satisfaction. The Court cannot perform such
oversight or otherwise rule on habeas claims that are
simultaneously pending before a state court. See Anderson
v. Bruce, 28 Fed.Appx. 786, 788 (10th Cir. 2001)
(federal habeas petition is premature where “petition
for … post-conviction relief [was] currently pending
before state courts”); cf Carbajal v. Lynn,
640 Fed. App'x 811, 813 (10th Cir. 2016) (“[N]o
reasonable jurist could debate the district court's
conclusion that it would be premature to address
[petitioner's federal § 2254 claims] … while
his direct appeal remains pending.”). The Court will
therefore deny the requested extension and dismiss the
Petition based on Marker's failure to satisfy the
exhaustion requirement. See Allen v. Zavaras, 568
F.3d 1197, 1202 (10th Cir. 2009) (holding that Section 2254
petition may be dismissed sua sponte if
“failure to exhaust [is] clear from the face of the
Court will also deny a certificate of appealability under
Habeas Corpus Rule 11(a), as Marker has failed to make a
substantial showing that he has been denied a constitutional
ORDERED that Marker's Motion for Continuance (Doc. 6) is
FURTHER ORDERED that Marker's Petition Under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus (Doc. 1) is dismissed
without prejudice; a certificate of ...