United States District Court, D. New Mexico
HERBERT G. HEAD, Petitioner,
NEW MEXICO ATTORNEY GENERAL, Respondent.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
matter is before the Court on Herbert Head's Amended
Petition for Habeas Corpus Under 28 U.S.C. § 2254 (Doc.
3). Head asks the Court to vacate his "illegal"
state sentence because the original trial judge - whom Head
viewed as more lenient - did not preside over his probation
violation proceeding. Having reviewed the submission sua
sponte under 28 U.S.C. § 2254 and Habeas Corpus
Rule 4, the Court will dismiss the action, BACKGROUND
about March 11, 2015, Head pled guilty in New Mexico's
Second Judicial District Court to possession of a
methamphetamine in violation of N.M.S.A. 1978, §
30-31-23. See Doc. 3, p. 3; State v. Head,
D-2020-CR-2015-718. Hon. Charles Brown sentenced him to 18
months imprisonment, which was fully suspended, plus 18
months of probation. See Judgment and Sentence in
case no. D-2020-CR-2015-718. Judgment on the conviction and
sentence was entered on March 12, 2015, and Head was released
pursuant to the suspended sentence. Id.
three weeks later, Head was rearrested for possession of a
controlled substance, and the District Attorney filed a
motion for revoke his probation. See RPN: Probation
Violation filed April 13, 2015 in case no.
D-2020-CR-2015-718. Hon. Michael Martinez presided over the
Revocation Hearing. See Doc. 1; p. 1; NTC
Notice of Probation Violation Hearing filed June 26, 2015 in
case no. D-2020-CR-2015-718. Judge Martinez entered an order
revoking Head's probation and sentencing him to four
years imprisonment (the "Revocation Order").
See Order-Revoking Probation filed September 18,
2015 in case no. D-2020-CR-2015-718. Head filed a direct
appeal of the Revocation Order, which was affirmed on March
filed the instant habeas proceeding on July 18, 2017. He then
filed an Amended Petition under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus (the "Amended Petition") on
August 1, 2017, which supersedes his initial petition.
See Giles v. United States, 906 F.2d 1386, 1389
(10th Cir. 1990) (noting that a "pleading that has been
amended under Rule 15(a) supersedes the pleading it modifies
and remains in effect throughout the action unless it
subsequently is modified"); Habeas Corpus Rule 12
("The Federal Rules of Civil Procedure, to the extent
that they are not inconsistent with any statutory provisions
or these rules, may be applied to a proceeding under these
Amended Petition, Head alleges that Judge Brown indicated a
"fair sentence" for the probation violation would
be 90 days imprisonment. See Doc. 1, p. 1. Head
therefore argues it was illegal for Judge Martinez to preside
over the revocation proceeding and impose a greater sentence.
Judge Brown did make a statement in open court that[, ] as
the Judge of Record[, ] he had then offered a 90 day
sentence, with half time of only 45 days in jail, for this
said violation of probation.... Both judges must since [sign
off on] this same release ... before any new judge can then
hear the formal probation hearing.., . It is e-Iegal for the
Court to ... victimize the said defendant with this e-legal
action and a change of judges.... However, if a new judge
does step in or take over for the Judge of Record (Brown),
that., . judge cannot... sentence the defendant to any more
time (90 days) than ... Brown had ... stated ... was a fair
sentence for this said violation of probation.
See Doc. l, p. 1.
2254(a) only allows the Federal Court to review a State Court
criminal proceeding on the ground that the prisoner is being
held in violation of federal law. 28 U.S.C. § 2254(a).
See also Wilson v. Corcoran, 562 U.S. 1, 4 (2010)
("The habeas statute unambiguously provides that a
federal court may issue the writ to a state prisoner
'only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United
States.") (internal quotations omitted). Habeas Corpus
Rule 4 requires the Federal Court to dismiss a § 2254
habeas petition "[i]f it plainly appears from the face
of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief." Thus, the Federal
Court must "dismiss a habeas petition that fails to
allege facts that state a constitutional violation, " or
other violation of federal law. Boithvell v.
Keating, 399 F.3d 1203, 1211 (10th Cir. 2005). Summary
dismissal is also appropriate where the facts alleged are
"vague" or "conclusory, " "palpably
incredible" or "patently frivolous or false"
when compared to the record. Blackledge v. Allison,
431 U.S. 63, 75-76 (1977) (internal quotations omitted);
Wilcox v. Aleman, 3 Fed.Appx. 920, 922 (10th Cir.
is no indication in the State Court record, which is
available online and subject to judicial notice, that Judge
Brown was involved in Head's revocation proceeding or
otherwise indicated 90 days imprisonment would be a
"fair sentence." Even accepting these facts as
true, however, the Amended Petition does allege facts
supporting federal review under § 2254(a). Head has not
cited, nor has the Court \incovered, any federal law
requiring: (1) the state trial judge to preside over any
subsequent probation revocation proceedings; or (2) the new
judge to implement his colleague's suggestion following a
transfer. Head is therefore plainly not entitled to relief,
and the Court will dismiss the Amended Petition. The Court
will also deny a certificate of appealability under Habeas
Corpus Rule 11(a), as Head has not made a substantial showing
that he has been denied a constitutional right.
ORDERED that Herbert Head's Amended Petition Under 28
U.S.C. § 2254 for a | Writ of Habeas Corpus (Doc. 3) is
dismissed; a certificate of appealability is denied; and
judgment will be entered.
 The Court took judicial notice of the
State Court criminal docket. See United States v.
Ahidley,486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(courts have "discretion to take judicial notice of
publicly-filed records ... and certain other courts
concerning matters that bear directly upon the disposition of
the case at hand"); Stack v. McCotter, 2003 WL
22422416 (10th Cir. 2003) (unpublished) (finding that a state
district court's ...