United States District Court, D. New Mexico
Van Duzer Lea County Correctional Facility Hobbs, New Mexico
Petitioner pro se.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the
Petitioner's Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 by a Person in State
Custody, filed April 30, 2018 (Doc.
1)(“Petition”). It appears from the
Petition's face that 28 U.S.C. § 2244(d)(1)'s
one-year statute of limitations bars Petitioner George Van
Duzer's § 2254 claims. Accordingly, the Court
dismisses the Petition with prejudice as time-barred.
AND PROCEDURAL BACKGROUND
Jury returned an indictment against Van Duzer on May 18, 1993
for the first-degree, premeditated murder of his estranged
wife in front of their minor daughter. See Cause No.
D-202-CR 1993-01189, County of Bernalillo, Second Judicial
District Court, State of New Mexico. On November 9, 1994, Van
Duzer entered into a Plea and Disposition Agreement, in which
he agreed to plead no contest to the charge. The Plea and
Disposition Agreement states:
The state and the defendant understand that the maximum
penalties for these charges are: Count 1 of the Indictment, a
1st Degree Capital Felony, Death or Life
Imprisonment. . . . Under this agreement the defendant will
be sentenced to life imprisonment. If he violates probation
or parole, he may be incarcerated for the balance of the
and Disposition Agreement at 2. Under the Plea and
Disposition Agreement, Van Duzer also waived his appeal
rights. See Plea and Disposition Agreement at 3. The
State Court accepted the Plea and Disposition Agreement and
it was filed on November 14, 1994.
State Court entered Judgment on Van Duzer's conviction
and sentence on April 12, 1995. See Judgment,
Sentence and Commitment. The Judgment provides that
“[t]he Defendant . . . is sentenced to the custody of
the Corrections Department for the term of life. . . . It is
further ordered that the Defendant be placed on parole for 2
years after release.” Judgment, Sentence and Commitment
at 1-2. No appeal was taken from the Judgment, Sentence and
19, 2011, the State Court entered an Order Amending Judgment
and Sentence to Correct Parole Term. The Order Amending
The Court hereby finds that the Judgment and Sentence needs
to be corrected to reflect the correct parole term applicable
at the time of the offense and the sentencing in this case
pursuant to § 31-21-10(B), NMSA 1978. The Court hereby
orders that defendant, upon completion of the life sentence
of imprisonment, shall be required to undergo a minimum
period of parole of five (5) years.
Amending Judgment. On January 17, 2018, six and one-half
years after entry of the Order Amending Judgment, Van Duzer
filed a Motion for Corrected Judgment and Sentence. The
Motion for Corrected Judgment alleges that: Van Duzer was
sentenced to thirty years, not life; sentenced to two years
parole, not five years; and all sentencing was entered in
1995 before changes were made to current sentencing
guidelines, and prays “to correct these errors.”
Motion for Corrected Judgment at 1; Petition at 2-3. The
State District Court denied the Motion for Corrected
Judgment. See Order, at 1, filed February 23, 2018.
The record does not indicate whether an appeal was taken from
denial of the Motion for Corrected Judgment. Van Duzer
appears to contend that he failed to meet the appeal deadline
“due to lock down and finances.” Petition at 3.
Petition, Van Duzer challenges his conviction and sentence in
Second Judicial District Cause No. D-202-CR 1993-01189.
See Petition at 1. He alleges that he should have
received a thirty-year sentence and two years parole, rather
than a life sentence and five years of parole. See
Petition at 3. He raises issues of breach of contract by
changing his plea agreement, use of a false social security
number on the Judgment, ineffective assistance of counsel in
entering into the plea agreement, and false arrest and
imprisonment. See Petition at 3-5.
REGARDING § 2254 AND THE STATUTE OF
Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C.
§§ 2241-55, (“AEDPA”) governs petitions
for writs of habeas corpus and has a one-year statute of
limitations. 28 U.S.C. § 2244(d). Section 2244(d)(1)
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 ...