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Gomez v. Smith

United States District Court, D. New Mexico

February 1, 2018

ANDREW A. GOMEZ, Petitioner,
v.
R.C. SMITH, WARDEN, and ATTORNEY GENERAL, STATE OF NEW MEXICO, Respondents.

          ORDER

         THIS MATTER is before the Court sua sponte on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). It appears from the face of the Petition and the attachments submitted by Petitioner Gomez that Petitioner's § 2254 claims are barred by the 1-year statute of limitations of 28 U.S.C. § 2244(d)(1). The Court will order Gomez to show cause within 30 days why the Petition should not be dismissed as time-barred.

         Petitioner Andrew Anthony Gomez challenges the 45-year sentence imposed by the State of New Mexico, Second Judicial District Court, in Cause No. D-202-CR 1999-00768. On November 19, 1999, Petitioner pled guilty to thirteen counts of armed robbery, one count of attempt to commit first degree murder, and one count of possession of a firearm or destructive device by a felon. (Doc. 1-1 at 19-26). At the sentencing hearing held May 11, 2000, the Second Judicial District Judge stated

“I will impose . . .a total sentence of 156 and ½ years. And of that sentence I will suspend all but 45 years to be served in the penitentiary, followed by 5 years of supervised probation.”

(Doc. 1-1 at 51). Judgment was entered on Petitioner's conviction and sentence on July 25, 2000. (Doc. 1-2 at 1-5). Consistent with his plea agreement, Petitioner did not file a direct appeal. Approximately twelve years later, on August 17, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in the Second Judicial District Court. (Doc. 1-2 at 6-14). The Second Judicial District Court denied the Petition for Writ of Habeas Corpus on March 3, 2016. (Doc. 1-2 at 37-49. The New Mexico Supreme Court denied a writ of certiorari to review the District Court's ruling on May 9, 2017. (Doc. 1-1 at 3).

         Gomez then filed his Petition in this Court on January 29, 2018. (Doc. 1). In his Petition, Gomez challenges his sentence in Second Judicial District Cause No. D-202-CR 1999-00768 under 28 U.S.C. § 2254. (Doc. 1 at 1). He claims he should have received a 30-year sentence, rather than a 45-year sentence, and raises issues of ineffective assistance of counsel, lack of a knowing and voluntary plea, and failure of the plea agreement to conform to his “J and S.” (Doc. 1).

         Petitions for a writ of habeas corpus by a person in state custody under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) 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 exercise of due diligence.”

28 U.S.C. § 2244(d)(1).

         Section 2244(d) further provides:

“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any ...

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