United States District Court, D. New Mexico
ORDER DENYING MOTION TO APPOINT COUNSEL AND ORDER TO
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's habeas corpus petition under 28
U.S.C. § 2254 and his Motion to Appoint Counsel.
Docs. 1, 8. Plaintiff asks the Court to vacate his
state court sentence for manslaughter, aggravated battery,
and tampering with evidence based on, inter alia,
ineffective assistance of counsel and due process violations.
See generally doc. 1. For the reasons
below, the Court will deny Plaintiff's Motion to Appoint
Counsel and require Plaintiff to show cause why his habeas
petition (doc. 1) should not be dismissed as
pled guilty to the above-mentioned state court charges on
February 25, 2013. See doc. 1 at 1; see
also Plea and Disposition Agreement entered in case no.
D-202- CR-2010-05820. He was sentenced to fifteen years'
imprisonment, five of which were suspended. See doc.
1 at 1. Judgment on his conviction and sentence was
entered June 26, 2013. See Judgment, Partially
Suspended Sentence and Commitment entered in case no.
D-202-CR-2010-05820. In accordance with the plea agreement,
Plaintiff did not file an appeal. See doc. 1 at
6-10. The Judgment therefore became final no later than July
29, 2013, the first business day following the expiration of
the 30-day appeal period. See Locke v. Saffle, 237
F.3d 1269, 1273 (10th Cir. 2001) (explaining that a
petitioner's judgment becomes final for purposes of
§ 2254 when the time for seeking state appellate review
expires); NMRA, Rule 12-201 (providing that a notice of
appeal must be filed within 30 days after entry of the
judgment). Plaintiff filed a motion to withdraw his plea on
September 10, 2013, but he withdrew that request less than a
month later. See Motions to Withdraw entered
September 10, 2013 and October 2, 2013 in case no. D-202-
November 16, 2015, Plaintiff filed a state habeas petition.
See RPN: Habeas Corpus Petition entered in case no.
D-202-CR-2010-05820. The State Court denied the petition on
March 7, 2016, and the New Mexico Supreme Court denied his
petition for writ of certiorari on September 14, 2017.
See doc. 1 at 3; NMSC case no. S-1-SC-36524. On
November 2, 2017, Plaintiff filed the federal § 2254
petition. See doc. 1. Two months later, he
filed the Motion asking the Court to appoint counsel to
assist with this case. See doc. 8.
Appointment of Counsel
is no constitutional right to counsel in habeas proceedings.
Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.
2008). Unless and until an evidentiary hearing is warranted,
“[t]he decision to appoint counsel is left to the sound
discretion of the district court[.]” Engberg v.
Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). Factors
guiding such discretion include “the merits of the
litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present
his claims, and the complexity of the legal issues raised by
the claims.” Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991) (citation omitted). The burden is on the
petitioner “to convince the court that there is
sufficient merit to his claim to warrant the appointment of
counsel.” Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1115 (10th Cir. 2004) (internal citations
omitted) (quoting McCarthy v. Weinberg, 753 F.2d
836, 838 (10th Cir. 1985)).
the above factors, the Court is not convinced that counsel
should be appointed at this time. The claims are not
particularly complex, and it is questionable whether
Plaintiff is eligible for federal relief. Further, beyond
citing his indigence, lack of legal knowledge, and mental
health history-which, unfortunately, are factors in most
pro se cases-Plaintiff has not demonstrated an
inability to prosecute the habeas petition. The Motion to
Appoint Counsel (doc. 8) will therefore be denied.
Timeliness of the 2254 Petition
for a writ of habeas corpus by a person in state custody must
generally be filed within one year after the defendant's
conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The
one-year limitation period can be extended:
(1) while a state habeas petition is pending, §
(2) where unconstitutional state action has impeded the
filing of a federal habeas petition, § 2244(d)(1)(B);
(3) where a new constitutional right has been recognized by
the Supreme Court, § 2244(d)(1)(C); or
(4) where the factual basis for the claim could not have been
discovered until later, ...