United States District Court, D. New Mexico
ORDER TO SHOW CAUSE
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on James Martin's habeas
corpus petition under 28 U.S.C. § 2254 [Doc. 1], filed
March 23, 2017. Martin asks the Court to vacate his state
sentence for criminal sexual penetration, arguing the
statutes applicable to sex offenders violate the Equal
Protection Clause of the U.S. Constitution. [Doc. 1] at
16-17. For the reasons below, the Court will require Martin
to show cause why his habeas petition should not be dismissed
pled no contest to three counts of criminal sexual
penetration in state court on January 27, 2010. See
Change of Plea Minutes in Case No.
D-1215-CR-2008-00514. He was sentenced to 30 years imprisonment,
16 of which were suspended. [Doc. 1] at 1. The state court
entered Judgment on his conviction and sentence on January
28, 2010. Id.; Judgment and Sentence in Case No.
D-1215-CR-2008-00514. Martin did not file an appeal. [Doc. 1]
at 2. The Judgment therefore became final on March 1, 2010,
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); Rule 12-201 NMRA
(providing that a notice of appeal must be filed within 30
days after entry of the judgment); Rule 1-006(A)(1)(c) NMRA
(explaining that when a 30-day appeal period falls on a
Saturday, the period expires at the end of the next business
three years later, Martin filed a state habeas petition.
[Doc. 1] at 6; Habeas Corpus Petition in Case No.
D-1215-CR-2008-00514. The state court denied the petition on
August 13, 2013. [Doc. 1] at 6; Order in Case No.
D-1215-CR-2008-00514. Martin continued to file state habeas
petitions until 2017. See generally Case No.
D-1215-CR-2008-00514. On March 23, 2017, he filed this
federal § 2254 petition. [Doc 1].
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).
tolling may also be 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).
one-year limitation period appears to have expired in March
2011, about six years before Martin filed his federal §
2254 petition. The filing of a state habeas petition after
the expiration of the one-year period did not-as Martin may
believe-restart the clock or otherwise immunize the untimely
federal petition. See Gunderson v. Abbott, 172 F.
App'x. 806, 809 (10th Cir. 2006) (unpublished) (“A
state court [habeas] filing submitted after the . . .
deadline does not toll the limitations period.”);
Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir.
2001) (noting the petitioner could not take advantage of
tolling “for time spent in state post-conviction
proceedings because his applications for post-conviction
relief were not filed until after . . . the end of the
limitations period . . . .”). The Court will therefore
require Martin to show cause within 30 days of entry of this
Order why his habeas petition should not be dismissed as
untimely. Failure to timely comply may result in dismissal of
the habeas action without further notice. See Hare v.
Ray, 232 F.3d 901 (10th Cir. 2000) (the district court
may sua sponte dismiss an untimely § 2254 petition where
the petitioner fails to identify circumstances that would
IS THEREFORE ORDERED that, no later than
June 15, 2018, Martin file a response
showing cause, if any, why his § 2254 habeas ...