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Wilson v. Jablonski

United States District Court, D. New Mexico

April 25, 2018

JAMES WILSON, Petitioner,
v.
DAVID JABLONSKI, Respondent.

          ORDER SETTING AN EVIDENTIARY HEARING AND APPOINTING COUNSEL FOR PETITIONER

         THIS MATTER is before the Court on pro se Petitioner James Wilson's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody Or Fed.R.Civ.P. 60(B)(1)(4)(5)(6) (hereinafter referred to as “§ 2254 petition”), filed on September 6, 2017. [Doc. 1] Respondent David Jablonski filed a response to Petitioner's § 2254 petition on February 12, 2018 and Petitioner filed a reply on February 21, 2018. [Docs. 23, 24] This matter has been referred to the undersigned judge “to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case.” [Doc. 22] After careful consideration of the pertinent law and all of the pleadings submitted by the parties, including attachments, exhibits and portions of the underlying criminal record, the Court concludes that an evidentiary hearing should be scheduled in this matter and counsel should be appointed to represent Petitioner pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases In The United States District Courts.

         I. BACKGROUND

         This case has a lengthy and complex procedural history, which will be set forth herein only to the extent necessary to resolve the issues presented in Petitioner's § 2254 petition. Petitioner was convicted in 2011 in the Fifth Judicial District of the State of New Mexico in the following criminal cases and the following sentences were imposed:

D-506-CR-201000213 - Larceny in violation of N.M. Stat. Ann. § 30-16-01. [Doc. 23-1 at 1 (Ex. A)]. Petitioner was sentenced to a term of eighteen (18) months of imprisonment, followed by one (1) year parole. Petitioner's sentence was suspended and he was “placed on supervised probation for a period of one (1) year and six (6) months under the supervision of the Probation and Parole Division of the New Mexico Department of Corrections.” [Id. at 2]
D-506-CR-201100271 - Count 1-assault with intent to commit a violent felony in violation of N.M. Stat. Ann. § 30-03-03; Count 2-aggravated fleeing a law enforcement officer in violation of N.M. Stat. Ann. § 30-22-01.1; Count 3-assault upon a peace officer in violation of N.M. Stat. Ann. § 30-22-21; Count 4-resisting, evading or obstructing an officer in violation of N.M. Stat. Ann. § 30-22-01(B); and Count 5-aggravated driving while under the influence of intoxicating liquor or any drug in violation of N.M. Stat. Ann. § 66-08-102(D)(3). [Doc. 23-1 at 58, Ex. L] Petitioner was sentenced to: Count 1-three (3) years followed by two (2) years of parole; Count 2-eighteen (18) months followed by one (1) year of parole; Count 3-three hundred sixty four (364) days; Count 4-three hundred sixty-four (364) days; and Count 5-ninety (90) days, all of which was7uspended except for forty-eight (48) hours. Petitioner's sentence was ordered to be “served consecutively to the sentence imposed in Cause No. D-506-CR-201000213.” [Id. at 60] Additionally, Counts 1 and 2 were imposed concurrently with each other, Count 3 was imposed consecutively to Count 1, Count 4 was imposed consecutively to Counts 1 and 2, and Count 5 was imposed concurrently to the sentence in Count 4, for a total term of “four (4) years, three hundred sixty-three (363) days to be followed by two (2) years on parole.” [Id. at 60] Petitioner was ordered to serve two days in the custody of the Department of Corrections, but the remainder of his sentence was suspended. Upon completion of his term of imprisonment and release from custody, Petitioner was placed on “supervised probation for a period of five (5) years under the supervision of the Probation and Parole Division of the New Mexico Department of Corrections, which shall run concurrent with the parole term imposed.” [Id.]
D-506-CR-201100272 - Failure to appear on a felony in violation of N.M. Stat. Ann. § 31-03-09(A). [Doc. 23-2 at 11, Ex. W] Petitioner was sentenced to a term of eighteen (18) months, followed by one year parole, which was ordered to be served “consecutively to the sentence imposed in D-506-CR-201100271.” [Id. at 12] Petitioner's sentence was suspended and he was “placed on supervised probation for a period of one (1) year and six (6) months under the supervision of the Probation and Parole Division of the New Mexico Department of Corrections.” [Id.]
D-506-CR-201100324 - Count 1-battery upon a peace officer in violation of N.M. Stat. Ann. § 30-22-24; and Court-2 criminal damage to property in violation of N.M. Stat. Ann. § 30-15-01. [Doc. 23 n 2 at 61, Ex. FF] Petitioner was sentenced to: Count 1-a term of eighteen (18) months, followed by one year of parole, which was enhanced by one year under the habitual offender statute, N.M. Stat. Ann. § 31-18-17, and Count 2-a term of six (6) months. Counts 1 and 2 were imposed consecutive to each other, resulting in “a total term of three (3) years to be followed by one (1) year on parole.” Petitioner's sentence was to “be served consecutively to the sentence imposed in Cause No. D-506-CR-201100272.” [Id.]

         Petitioner's probation in each of the foregoing cases was set to expire on the following dates: (1) No. D-506-CR-201000213-December 12, 2012 [Doc. 23-1 at 4, Ex. B]; (2) D-506-CR- 201100271-September 8, 2017 [Doc. 23-1 at 64, Ex. M]; (3) D-506-CR-201100272- December 4, 2018 [Doc. 23-2 at 17, Ex. X]; and (4) D-506-CR-201100324-March 6, 2014. [Doc. 23-2 at 65, Ex. GG]

         In 2013, Petitioner's probation was revoked in all four cases, resulting in amended judgments and sentences as follows:

D-506-CR-201000213 - a term of eighteen (18) months, followed by one (1) year of parole, which was enhanced by one (1) year under the habitual offender statute, N.M. Stat. Ann. § 31-18-17. [Doc. 23-1 at 24-25, Ex. E]
D-506-CR-201100271 - Count 1-a term of three (3) years followed by two (2) years of parole; Count 2-a term of eighteen (18) months, followed by one (1) year of parole; Count 3-a term of three hundred sixty-four (364) days; Count 4-a term of three hundred sixty-four (364) days; and Count 5-a term of ninety (90) days suspended except forty-eight (48) hours, for a “total term of four (4) years, three hundred sixty-three days (363) to be followed by two (2) years parole.” [Doc. 23-1 at 80-81, Ex. P] Petitioner was ordered to “serve two (2) days of this sentence in the custody of the New Mexico Department of Corrections to be followed by a term of two (2) years on parole under the supervision of the Probation and Parole Division of the New Mexico Corrections Department.” [Id.] The remainder of Petitioner's sentence was suspended. Upon completion of Petitioner's term of imprisonment and release from custody, Petitioner was placed on supervised probation for a period of five (5) years, concurrent with his parole term. [Id.]
D-506-CR-201100272 - a term of eighteen (18) months, followed by one (1) year parole, enhanced by one (1) year under the habitual offender statute, N.M. Stat. Ann. § 31-18-17. [Doc. 23-2 at 27, Ex. Z]
D-506-CR-201100324 - Count 1 - a term of eighteen (18) months, followed by one (1) year parole, enhanced by one (1) year under the habitual offender statute, N.M. Stat. Ann. § 31-18-17; and Count 2 - a term of six (6) months, the sentences to be served concurrently. [Doc. 23-2 at 85, Ex. JJ]

         On September 23, 2015, Corrected Orders Revoking Probation and Imposing Judgment and Sentence were filed in case numbers D-506-CR-201100271 and D-506-CR-201100324. [See Doc. 23-1 at 85-89, Ex. Q and Doc. 23-2 at 88-90, Ex. KK] The corrected order in case number D-506-CR-201100271 required Defendant to serve his full sentence[1] (rather than suspending all but two days of his sentence) and provided that “[t]he sentence imposed in this case shall be served consecutively to the sentence imposed in Cause No. D-506-CR-201000213.” [Doc. 23-1 at 87] The corrected order further provided for certain counts to be served concurrently with or consecutively to other counts in the case.[2] The corrected order in D-506-CR-201100324 specified that Counts 1 and 2 are to “be served consecutively” and provided that “[t]he sentence imposed in this case shall be served consecutively to the sentence imposed in Cause No. D-506-CR-201100272.” [Doc. 23-2 at 89]

         On April 27, 2016, the 2013 Order Revoking Probation and Imposing Judgment and Sentence in case number D-506-CR-2010-213 was declared void because Petitioner's “probation expired prior to the entry of the Order revoking same.” [Doc. 23-1 at 34, Ex. G] Soon thereafter, on May 20, 2016, the Court entered amended orders in Petitioner's three other criminal cases, which were the same as the prior orders, with the following exceptions:

D-506-CR-201100271- Petitioner's pre-sentence confinement credit was calculated differently, because he began serving his sentence on “November 6, 2012, the date the [Petitioner's] probation expired in Cause No. D-506-CR-201000213.” [Doc. 23-1 at 92, Ex. R]
D-506-CR-201100272 - Petitioner's sentence of eighteen (18) months followed by one (1) year of parole was not enhanced by the habitual offender statute and Petitioner's presentence confinement credit was calculated differently.[3] Additionally, the amended order provides that “[t]he sentence imposed in this case shall be served consecutively to the sentence imposed in Cause No. D-506-CR-2011-00271.” [Doc. 23-2 at 31, Ex. AA]
D-506-CR-201100324 - Petitioner's pre-sentence confinement credit was calculated differently.[4]

         On June 13, 2016, Petitioner filed a Notice of Appeal in the New Mexico Court of Appeals, challenging the May 20, 2016 Orders in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324. [Doc. 23-1 at 94, Ex. S; Doc. 23-2, Ex. BB; Doc. 23-2 at 95, Ex. MM] The New Mexico Court of Appeals observed that Petitioner's claims that “his presentence confinement credit has been erroneously calculated, that he had finished serving his sentence in each of the above cases prior to the revocation of his probation, and that the district court therefore lost jurisdiction to revoke his probation and Defendant should accordingly be immediately released from confinement . . . are either express petitions for writs of habeas corpus filed pursuant to Rule 5-802 NMRA, or should be construed as such.” [Doc. 23-2 at 116, Ex. PP] Because the New Mexico Court of Appeals “does not have subject matter jurisdiction to hear appeals from district court orders denying habeas-corpus petitions, ” the Court of Appeals transferred “the entire file to the Supreme Court.” [Id.] The New Mexico Supreme Court accepted the transfer and treated Petitioner's docketing statements “as a consolidated petition for a writ of certiorari under Rule 12-501.” [Doc. 23-2 at 117-18, Ex. QQ]

         While Petitioner's consolidated petition for writ of certiorari was pending in the New Mexico Supreme Court, Petitioner filed an Application For Emergency Temporary Restraining Order in the First Judicial District Court of the State of New Mexico, requesting immediate release from custody because the New Mexico Department of Corrections allegedly was detaining Petitioner illegally “by orders that were filed in contravention to the New Mexico Constitution, Article II, §§ 15 and 18 and NMSA 1978, § 30-1-10.” [Doc. 23-4 at 14-15, Ex. VV] Petitioner also filed a tort complaint in the First Judicial District Court of the State of New Mexico, alleging that his “cases were all fully served” and the May 20, 2016 orders violate Petitioner's right “against being punished from the same crime twice.” [Doc. 23-4 at 17-23, Ex. XX] Lastly, Petitioner filed an “Emergency Petition for Writ of Prohibition” in the New Mexico Supreme Court, challenging the May 20, 2016 Orders in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324 because: (1) “the trial court's jurisdiction already was at an end”; (2) his sentences “had been fully served and the court's jurisdiction was at an end”; (3) the trial court's orders were “outside the jurisdiction of NMRA Rule 5-802”; and (4) Petitioner's sentences “had been fully served and expired, prior to the revocation” of his probation and, as such, the trial “court's jurisdiction was at an end.” [Doc. 23-3 at 6-7]

         In light of Petitioner's numerous pro se filings, the State of New Mexico moved the New Mexico Supreme Court “to enter an order prohibiting Petitioner from filing any further pro se pleadings attacking his presentence confinement credit, his probation revocation, and the amended judgments and sentences in his three underlying district court cases.” [Ex. 23-4 at 1, Ex. SS] Additionally, in response to Petitioner's consolidated petition for writ of certiorari in the New Mexico Supreme Court, the State of New Mexico stated that Petitioner's “claims and times overlap and are not easily untangled in the present pleadings.” [Doc. 23-4 at 8, Ex. TT] Rather than attempting to untangle Petitioner's claims or address them on the merits, the State of New Mexico argued “that the appropriate course of action” was to “allow the First Judicial District Court to evaluate and dispose of” Petitioner's Application For Emergency Temporary Restraining Order and tort complaint, “to enter an order prohibiting Petitioner from any future filings on the issue, and to hold the current petition for writ of certiorari in abeyance or to dismiss it as premature.” [Doc. 23-4 at 10, Ex. TT] On November 13, 2017, the New Mexico Supreme Court summarily ...


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