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Amaro v. Smith

United States District Court, D. New Mexico

May 24, 2018

PEDRO J. “PETE” AMARO, Petitioner,
v.
R.C. SMITH, Warden, ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents.

          MEMORANDUM OPINION AND ORDER DISMISSING HABEAS PETITION

         THIS MATTER is before the Court on Pedro Amaro's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (“Petition”). (Doc. 1). Also before the Court are various motions to proceed in forma pauperis; appoint counsel; expand the record; pursue class action claims; require the State of New Mexico to comply with due process; and for summary judgment. (Docs. 2-6, 11, 17-19, and 22). For the reasons set out below, the Court will dismiss the Petition as untimely and deny as moot all other pending motions.

         BACKGROUND

         Amaro was convicted of first degree murder, tampering with evidence, and burglary in New Mexico's Ninth Judicial District Court, No. D-905-CR-2001-00182.[1] Judgment on his conviction was entered no later than 2004. See NTC: Entry of Judgment entered April 20, 2004 in D-905-CR-2001-00182. Amaro filed a capital appeal to the New Mexico Supreme Court (NMSC), which affirmed the criminal judgment on August 19, 2005. See Mandate/Affirmed entered in D-905-CR-2001-00182. Amaro's conviction and sentence therefore became final by November of 2005, when the “ninety-day time period for filing a certiorari petition with the United States Supreme Court expired.” Harris v. Dinwiddie, 642 F.3d 902, 906 n. 6 (10th Cir. 2011) (addressing finality in § 2254 cases).

         Between 2005 and 2007, Amaro filed two motions in the state criminal case requesting records and transcripts. See Motions entered October 25, 2005 and May 1, 2007 in D-905-CR-2001-00182. There was no other case activity until April 3, 2015, when Amaro filed a state habeas petition. The State Court dismissed the petition on April 16, 2015. See Order Summarily Dismissing Petition for Writ of Habeas Corpus entered in D-905-CR-2001-00182. Amaro filed a petition for writ of certiorari with the NMSC, which was denied on July 28, 2017. See NCJ: Disposition Order in D-905-CR-2001-00182.

         On August 30, 2017, Amaro filed the present federal § 2254 Petition. (Doc. 1). The Petition seeks to vacate all criminal judgments entered in New Mexico's Ninth Judicial District Court between 1979 and 2012/2013. (Doc. 1, p. 1). It also appears to challenge his State Court convictions based on, inter alia, judicial misconduct, prosecutorial misconduct, and ineffective assistance of counsel. (Doc. 1, p. 9). By a Memorandum Opinion and Order entered December 5, 2017, the Court dismissed all “class action” claims after noting that pro se parties cannot act on behalf of others. (Doc. 10). The Court also directed Amaro to show cause why his individual § 2254 claims should not be dismissed as untimely. Id.

         ANALYSIS

         1. Time Limitations on Habeas Proceedings

         Petitions 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, § 2244(d)(2);
(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)(D).

         Amaro filed his federal § 2254 Petition nearly twelve years after his criminal judgment became final. However, in his forty-three-page show-cause response, Amaro maintains the Petition is still timely because he was “impeded, thwarted, and prevented” from “perfecting a habeas petition.” (Doc. 12, p. 10). The factual grounds for tolling are summarized as follows:

• The State Court failed to timely respond to Amaro's motions in 2005 and 2007 requesting records and transcripts, which meant he initially lacked access to the case file and trial transcripts. (Doc. 12, p. 4). When he finally obtained the “limited case-related materials” in 2012, he had to “translate each cassette in an ...

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