United States District Court, D. New Mexico
ORDER QUASHING FEBRUARY 15, 2018 ORDER TO SHOW CAUSE,
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, AND ORDERING
PETITIONER TO SHOW CAUSE
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts, on Petitioner Bernest Benjamin's Petition Under
28 U.S.C. § 2254 for a Writ of Habeas Corpus
(“§ 2254 petition”), filed on December 29,
2017. [Doc. 1]. Also before the Court are Petitioner's
Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915
[Doc. 2] and response to the Court's February 15, 2018
Order to Show Cause [Doc. 6]. For the following reasons, the
Court's Order to Show Cause [Doc. 6] will be quashed;
Petitioner's motion seeking leave to proceed in forma
pauperis [Doc. 2] will be granted; and Petitioner will
be ordered to show cause why his § 2254 petition should
not be dismissed.
was incarcerated at the time he filed his § 2254
petition, but subsequently was released from state custody.
See [Docs 1, 3, 6]. After a mailing to Petitioner
was returned as undeliverable, the Court ordered Petitioner
to “notify the Clerk of Court in writing of his current
mailing address or otherwise show cause why his petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254
should not be dismissed.” [Doc. 5]. Petitioner timely
responded to the Court's order to show cause, reaffirming
that his current mailing address is correct. [Doc. 6]. In
light of Petitioner's timely response, the Court's
February 15, 2018 Order to Show Cause [Doc. 5] will be
to Petitioner's Motion for Leave to Proceed Pursuant to
28 U.S.C. § 1915, Petitioner avers that he has zero
assets, zero income, and zero funds available to prepay the
filing fee. [Doc. 2] at 2. Attached to Petitioner's
motion is an inmate account statement for the preceding
six-month time period, which reflects an ending balance of
$.00 as of November 30, 2017. Because it appears that
Petitioner is unable to prepay the filing fee pursuant to 28
U.S.C. § 1915, the Court will grant Petitioner's
motion to proceed in forma pauperis [Doc. 2].
§ 2254 petition challenges his state criminal
convictions and sentences in D-202-CR-2008-2766 and
D-202-CR-2008-5305, as well as the subsequent revocation of
his probation. [Doc. 1]. The Court will take judicial notice
of its own docket, which reflects that Petitioner previously
has filed a petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging the revocation of his
probation in the same state criminal cases. See St. Louis
Baptist Temple, Inc. v. Fed. Deposit Ins. Co., 605 F.2d
1169, 1172 (10th Cir. 1979) (noting that “[j]udicial
notice is particularly applicable to the court's own
records of prior litigation closely related to the case
before it”). In Benjamin v. Nance, 13-cv-0629
MV/CG, Petitioner filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging the revocation
of his probation in D-202-CR-2008-2766 and
D-202-CR-2008-5305, which was dismissed without prejudice for
failure to exhaust state remedies. See Benjamin v.
Nance, 13-cv-0629 MV/CG, [Doc. 20] (D.N.M. Feb. 21,
2014). Because Petitioner's prior § 2254 was
dismissed without prejudice for failure to exhaust state
remedies, the present petition is not “second or
successive” under 28 U.S.C. § 2244. See Slack
v. McDaniel, 529 U.S. 473, 489 (2000) (holding that
“a habeas petition filed after an initial petition was
dismissed under Rose v. Lundy without an
adjudication on the merits is not a ‘second or
the Court notes that some of Petitioner's claims appear
to be barred by the one-year limitations period in 28 U.S.C.
§ 2244(d)(1). See Day v. McDonough, 547 U.S.
198, 209 (2006) (holding that “district courts are
permitted, but not obliged, to consider, sua sponte,
the timeliness of a state prisoner's habeas
petition”). Petitioner challenges his original
convictions and sentences, which, according to the face of
the petition and the attached exhibits, became final in March
2010, more than seven years prior to the filing of the
present petition. See [Doc. 1] at 4- 5; see also
Benjamin v. Nance, 13-cv-0629 MV/CG, [Doc. 8] (D.N.M.
Sept. 13, 2013). Although the one-year limitation period is
subject to statutory tolling during the pendency of an appeal
or a state post-conviction proceeding, see 28 U.S.C.
§ 2244(d)(2), Petitioner's § 2254 petition and
the attached exhibits reflect that Petitioner did not file an
appeal from the original judgment of conviction and sentence,
nor did he file a state post-conviction proceeding until
after the expiration of the one-year limitation period.
See [Doc. 1] at 5 (indicating Petitioner filed a
state petition for writ of habeas corpus on November 6,
2014). Because a state petition filed after the expiration of
the one-year limitation period is ineligible for statutory
tolling, see Fisher v. Gibson, 262 F.3d 1135,
1142-43 (10th Cir. 2001), Petitioner's § 2254 claims
challenging his original convictions and sentences are
time-barred absent equitable tolling, see Holland v.
Florida, 560 U.S. 631, 634 (2010) (holding that
“the timeliness provision in the federal habeas corpus
statute is subject to equitable tolling”).
tolling “is a rare remedy . . . to be applied
sparingly.” Yang v. Archuleta, 525 F.3d 925,
929 (10th Cir. 2008) (internal quotation marks and citation
omitted). “Generally, equitable tolling requires a
litigant to establish two elements: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.”
Id. at 928 (internal quotation marks and citation
omitted). “[A]n inmate bears a strong burden to show
specific facts to support his claim of extraordinary
circumstances and due diligence.” Id.
(internal quotation marks and citation omitted).
“[C]onclusory statement[s] . . . will not
suffice.” Id. at 930. In light of the
foregoing, Petitioner must show cause in writing, within 30
days of the date of entry of this Order, why his § 2254
claims challenging his original convictions and sentences
should not be dismissed as barred by the one-year limitation
period in § 2244(d)(1).
§ 2254 petition also appears to challenge the revocation
of his probation, but the record reflects that he has
completed serving his sentence and has been discharged from
probation. See [Doc. 1-1] at 14-15 (April 9, 2014
Order Revoking Probation sentencing Petitioner to four years
in the custody of the New Mexico Department of Corrections
and indicating “[n]o probation upon release”). It
is well established that an actual controversy must exist at
all stages of the litigation and an intervening change in
circumstance may render an action moot, thus depriving the
Court of jurisdiction. See Brown v. Buhman, 822 F.3d
1151, 1165 (10th Cir. 2016). “A suit becomes moot when
the issues presented are no longer ‘live' or the
parties lack a legally cognizable interest in the
outcome.” Id. (internal quotation marks and
citation omitted). “The crucial question is whether
granting a present determination of the issues offered will
have some effect in the real world.” Id.
(internal quotation marks and citation omitted).
Petitioner was in custody at the time he filed his §
2254 petition on December 29, 2017, he was released from
custody in January 2018. See [Doc. 1] at 37; [Doc.
An incarcerated convict's (or parolee's) challenge to
the validity of his conviction always satisfies the
case-or-controversy requirement, because the incarceration
(or the restriction imposed by the terms of the parole)
constitutes a concrete injury, caused by the conviction and
redressable by invalidation of the conviction. Once the
convict's sentence has expired, however, some concrete
and continuing injury other than the now-ended incarceration
or parole-some ‘collateral consequence' of the
conviction-must exist if the suit is to be maintained.
Spencer v. Kemna, 523 U.S. 1, 7 (1998). Although the
Court presumes “that a wrongful criminal conviction has
continuing collateral consequences, ” this presumption
does not extend to parole and probation revocations.
Id. at 8, 8-14. Thus, when a petitioner challenges a
parole or probation revocation, “but has completed the
sentence imposed upon the revocation, the defendant bears the
burden of demonstrating the existence of actual collateral
consequences resulting from the revocation.” United
States v. Meyers, 200 F.3d 715, 719 (10th Cir. 2000).
recognizes that his § 2254 petition may be moot, but
alleges that he will suffer collateral consequences absent
habeas relief because the revocation of his probation
“might be used to enhance a future offence or to
impeach his credibility as a witness.” [Doc. 1] at 19.
In Spencer v. Kemna, 523 U.S. at 15, the United
States Supreme Court rejected the argument that the
enhancement of a future sentence was sufficient to satisfy
the collateral consequences doctrine, explaining that:
[W]e are . . . unable to conclude that the
case-or-controversy requirement is satisfied by general
assertions or inferences that in the course of their
activities respondents will be prosecuted for violating valid
criminal laws. We assume that respondents will conduct their
activities within the law and so avoid prosecution and
Id. (internal quotation marks and citation omitted).
Similarly, the Court held that impeachment as a witness in a
future criminal or civil proceeding was insufficient to
establish collateral consequences, because “it is
purely a matter of speculation whether such an appearance
will occur, ” whether the prosecutor would choose to
use the parole revocation to impeach the petitioner, and
whether the judge would permit such impeachment. Id.
at 15-16. In light of the foregoing, to the extent Petitioner
challenges the revocation of his ...