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Duzer v. Simms

United States District Court, D. New Mexico

May 9, 2018

GEORGE VAN DUZER, Petitioner,
v.
WARDEN SIMMS or ACTING WARDEN HORTON IN INTERIM, Respondent.

          George Van Duzer Lea County Correctional Facility Hobbs, New Mexico Petitioner pro se.

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         A Grand 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.[1] 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 sentence.

         Plea 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.

         The 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 Commitment.

         On July 19, 2011, the State Court entered an Order Amending Judgment and Sentence to Correct Parole Term. The Order Amending Judgment stated:

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.

         Order 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.

         In his 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.

         LAW REGARDING § 2254 AND THE STATUTE OF LIMITATIONS

         The 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) states:

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 ...

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