United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
the Court is Jose Aponte-Delgado's habeas corpus petition
under 28 U.S.C. § 2254 (Doc. 1). Aponte-Delgado asks the
Court to vacate his state court sentence for criminal sexual
penetration and contributing to the delinquency of a minor
based on, inter alia, due process violations. For the reasons
below, the Court will require Aponte-Delgado to show cause
why his habeas petition should not be dismissed as untimely.
pled guilty to the above charges in 2008. See Doc. 1
at 1. He was sentenced to 16.5 years imprisonment, 11.5 of
which were suspended. Id. The state court entered
Judgment on his conviction and sentence on February 1, 2008.
Id. Aponte-Delgado did not file an appeal.
See Doc. 1 at 2. The Judgment therefore became final
on March 3, 2008, when the 30-day appeal period expired.
See Locke v. Saffle, 237 F.3d 1269, 1271-1273 (10th
Cir. 2001) (For purposes of § 2254, the conviction
becomes final upon the expiration of the state appeal
period); NMRA, Rule 12-201 (providing that a notice of appeal
must be filed within 30 days after entry of the judgment);
NMRA, Rule 1-006(A)(1)(c) (explaining that when a 30-day
appeal period falls on a Sunday, the period expires at the
end of the next business day). The state court amended the
Judgment on November 27, 2013 to reflect “an
indeterminate period of parole of between five (5) and twenty
(20) years.” Doc. 1 at 21. With the exception of a few
parole violations, there was no case activity for the next
four years. See generally State of New Mexico v.
Aponte-Delgado, Case No.
February 8, 2018, Aponte-Delgado filed a state habeas
petition. See Doc. 1 at 6; MTN: Motion in Case No.
D-202-CR-2006-04977. The State Court denied the petition on
February 16, 2018, and the New Mexico Supreme Court denied
his petition for writ of certiorari on March 23, 2018.
See Doc. 1 at 6; ORD: On Writ/Habeas Corpus and ORD:
Supreme Court in Case No. D-202-CR-2006-04977. On April 19,
2018, Aponte-Delgado filed the federal § 2254 petition.
See Doc. 1.
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, § 2244(d)(1)(C).
Equitable tolling may also available “when an inmate
diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary
circumstances beyond his [or her] control.” Marsh
v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
appears the limitation period expired well before
Aponte-Delgado filed the § 2254 petition. The one-year
period expired no later than November 27, 2014
(i.e., one year after the state court amended the
Judgment),  and he filed the § 2254 petition over
four years later. Aponte-Delgado acknowledges this potential
defect, but contends he “diligently attempted to
develop the factual [basis] for his claims in accordance with
New Mexico law.” Doc. 1 at 9. This information is
insufficient to determine whether any tolling provision
applies. The Court will therefore order Aponte-Delgado to
provide a more detailed explanation within thirty (30) days
of entry of this Order. Failure to timely respond to this
Order or otherwise show cause may result in dismissal of the
§ 2254 motion without further notice. See Hare v,
Ray, 232 F.3d 901 (10th Cir. 2000) (the district court
may sua sponte dismiss an untimely Section 2254
petition where the petitioner fails to identify circumstances
that would support tolling).
IS THEREFORE ORDERED that, within thirty (30) days
of entry of this Order, Aponte-Delgado must file a response
showing cause, if any, why his § 2254 ...