United States District Court, D. New Mexico
ORDER TO SHOW CAUSE
Order
This matter is before the Court, pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Court, on Petitioner Darlene Castillo's Petition
Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A
Person In State Custody (hereinafter referred to as
“§ 2254 petition”), filed on January 17,
2018. [Doc. 1] For the reasons explained below, the Court
will require Petitioner to show cause why her § 2254
petition should not be dismissed as untimely under 28 U.S.C.
§ 2244(d)(1)(A).
The
following facts are derived from the face Petitioner's
§ 2254 petition and attached exhibits. See Kilgore
v. Attorney Gen. of Colorado, 519 F.3d 1084, 1089 (10th
Cir. 2008) (noting that a district court can dismiss a habeas
petition sua sponte if “untimeliness is clear
from the face of the petition”). On April 8, 2013,
Petitioner was convicted of trafficking controlled substances
in violation of N.M. Stat. Ann. § 30-31-20 and use or
possession of drug paraphernalia in violation of N.M. Stat.
Ann. 30-31-25.1(A) in case number D-503-CR-2012-00225. [Doc.
1 at 1, 22-25] Petitioner did not file a direct appeal from
her convictions, but she did file a state petition for writ
of habeas corpus on July 24, 2013. [Id. at 2, 23]
Petitioner's petition for writ of habeas corpus was
dismissed on October 8, 2013. [Id.]
More
than four years later, on January 17, 2018, Petitioner filed
the present § 2254 petition challenging her convictions
in case number D-503-CR-2012-00225. [Doc. 1] Petitioner
alleges that her convictions are invalid because she was
deprived of her constitutional right to effective assistance
of counsel and the evidence was insufficient to sustain her
convictions. [Id. at 5, 7] With respect to the
timeliness of her § 2254 petition, Petitioner explains
that her § 2254 petition was not filed within the
one-year limitations period in 28 U.S.C. § 2244(d)
because she “thought that [she] had extinguished all
petitions” until “[s]omeone told [her] about a
Federal Habeas so [she is] taking a chance on it.”
[Id. at 13]
Title
28 of the United States Code, section 2244(d) imposes a
one-year limitation on “an application for a writ of
habeas corpus by a person in custody pursuant to the judgment
of a State court.” 28 U.S.C. § 2244(d)(1). The
one-year limitation period begins to run, in relevant part,
from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). Petitioner did not file a direct appeal from
criminal convictions and, therefore, her convictions became
final thirty days after the entry of judgment. See
NMRA 12-201(A)(1)(b) (noting that an appeal as of right must
be taken “within thirty (30) days after the judgment or
order appealed from is filed in the district court
clerk's office”). Thus, Petitioner's
convictions became final on May 8, 2013 and the one-year
limitation period expired on May 8, 2014.
The
Court recognizes that the one-year limitation period is
subject to statutory tolling during the time in which
“a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). Petitioner's state petition for writ of
habeas corpus was pending from July 24, 2013 until October 8,
2013 and, therefore, the one-year limitation period was
tolled during this seventy-six day time period. Accordingly,
Petitioner had until July 23, 2014 to timely file her §
2254 petition.
Petitioner's
§ 2254 petition was not filed, however, until January
17, 2018, more than three years after the expiration of the
one-year limitation period. Although the one-year limitation
period in § 2244(d) is subject to equitable tolling,
see Holland v. Florida, 560 U.S. 631, 645 (2010), a
litigant seeking equitable tolling generally “bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way, ” Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is appropriate only in “rare and exceptional
circumstances, ” Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000), and “a garden variety claim
of excusable neglect” is not enough to warrant
application of the doctrine, Holland, 560 U.S. at
651 (internal quotation marks and citation omitted).
To the
extent that Petitioner seeks to toll the one-year limitation
period based on her ignorance of the law, Petitioner's
claims is rejected. “[I]t is well established that
ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.”
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000) (internal quotation marks and citation omitted);
see also Gibson, 232 F.2d at 808 (noting that
“a petitioner must diligently pursue his federal habeas
claims; a claim of insufficient access to relevant law, such
as AEDPA, is not enough to support equitable tolling”).
Nonetheless, the Court will afford Petitioner an opportunity
to explain why the doctrine of equitable tolling may be
applicable to her § 2254 petition and why it should not
be dismissed as untimely under § 2254(d)(1)(A). Failure
timely to respond to this Order or otherwise show cause may
result in the dismissal of Petitioner's § 2254
petition without further notice.
IT IS
THEREFORE ORDERED that, within thirty (30) days of the date
of entry of this Order, Petitioner shall file a response
showing cause, if any exists, why her § ...