Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gomez v. Smith

United States District Court, D. New Mexico

March 6, 2018

ANDREW ANTHONY GOMEZ, Petitioner,
v.
R.C. SMITH, WARDEN, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Andrew Anthony Gomez. (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 dismiss the Petition with prejudice 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).

         On February 1, 2018, the Court entered an Order to Show Cause. (Doc. 6). In the Order to Show Cause, the Court advised Gomez that his claims appeared to be time-barred by the statute of limitations and ordered him to show cause within thirty days why his Petition should not be dismissed. (Doc. 6). Gomez filed a response to the Order to Show Cause (titled “Order to Show Cause Under ‘Extenuating Circumstances'”), in which he contends that his claims should not be dismissed because he did not learn until 2012 that the judge presiding over his state criminal case had used cocaine. (Doc. 7). The response states that, as early as 1998, there was a law enforcement report containing confidential information regarding the judge's cocaine use, and that this information was disclosed in a June 7, 2004, television investigative news report. (Doc. 7) at 1-2.

         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) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.