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Gros-Ventre v. Smith

United States District Court, D. New Mexico

June 19, 2018



         This matter is before the Court upon Joseph Gros-Ventre's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (“Petition”). (Doc. 1). Gros-Ventre is an inmate at the Lea County Correctional Facility (LCCF) and is proceeding pro se. He asks the Court to vacate his state sentence for manslaughter, aggravated battery, and tampering with evidence. For the reasons set out below, the Court will dismiss the Petition as untimely.

         I. Background

         Gros-Ventre pled guilty to the above charges on February 25, 2013. (Doc. 1) at 1; Plea and Disposition Agreement entered in No. D-202-CR-2010-05820.[1] He was sentenced to fifteen years imprisonment, five of which were suspended. (Doc. 1) at 1. The state court entered Judgment on his conviction and sentence on June 26, 2013. See Judgment, Partially Suspended Sentence and Commitment entered in No. D-202-CR-2010-05820. In accordance with the plea agreement, Gros-Ventre did not file an appeal. (Doc. 1) at 6-10. The Judgment therefore became final no later than July 29, 2013, the first business day following the expiration of the 30-day appeal period. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (explaining petitioner's judgment become final under Section 2254 when time for seeking state appellate review expires); NMRA, Rule 12-201 (requiring notice of appeal to be filed within 30 days after entry of judgment). Gros-Ventre filed a motion to withdraw his plea on September 10, 2013, but he withdrew the request less than a month later. See Motions to Withdraw entered September 10, 2013 and October 2, 2013 in No. D-202-CR-2010-05820. There was no relevant case activity in Gros-Ventre's criminal case for the next two years; see generally No. D-202-CR-2010-05820.

         On November 16, 2015, Gros-Ventre filed a state habeas petition. See RPN: Habeas Corpus Petition entered in No. D-202-CR-2010-05820. The State Court denied the petition on March 7, 2016, and the New Mexico Supreme Court (NMSC) denied his petition for writ of certiorari on September 14, 2017. (Doc. 1) at 3; NMSC No. S-1-SC-36524. On November 2, 2017, Gros-Ventre filed the federal Section 2254 petition. (Doc. 1). The petition raises claims based on, inter alia, ineffective assistance of counsel and due process violations. Id. The Court initially dismissed the case because Gros-Ventre failed to pay his $5.00 filing fee. (Docs. 5, 6). However, the Court set aside the dismissal and reinstated the case after determining the failure resulted from an administrative error by prison officials. (Doc. 11).

         II. Discussion

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year limitation period for habeas corpus petitions. 28 U.S.C. § 2244(d). The limitation period generally begins to run from the date on which a prisoner's conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The one-year period can be extended:

(1) While a properly filed 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).

         Because AEDPA's one-year limitation period is not jurisdictional, the period may be extended through equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010).

         By a Memorandum Opinion and Order entered April 30, 2018, the Court directed Gros-Ventre to show cause why his Section 2254 petition should not be dismissed as untimely. (Doc. 12). The petition reflects the one-year limitation period expired in July, 2014, over three years before Gros-Ventre filed his federal habeas petition on November 2, 2017. (Doc. 12) at 4-5. In response, Gros-Ventre argues the limitation period was tolled pursuant to Sections 2244(d)(2) and 2244(d)(1)(B). (Doc. 13) at 2-3. He also argues equitable tolling applies based on his lack of legal resources and his experience with frequent LCCF lockdowns. Id.

         A. Statutory Tolling Under Section 2244(d)

         Section 2244(d)(2) pertains to state habeas proceedings. It provides: “The time during which a properly filed application for State post-conviction … review … is pending shall not be counted toward” the one-year limitation period. Section 2244(d)(2) only applies, however, where petitioner files a state habeas petition before the expiration of the one-year period. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). “A collateral petition filed in state court after the limitations period has expired no longer serves to toll the statute of limitations.” Id; see also Sigala v. Bravo, 656 F.3d 1125, 1127 (10th Cir. 2011) (Because petitioner filed his state habeas petition “more than two years after the limitation period ended, it cannot serve as the basis for tolling under § 2244(d)(2).”); Gunderson v. Abbott, 172 Fed. App'x. 806, 809 (10th Cir. 2006) (unpublished) (“A state court [habeas] filing submitted after the … deadline ...

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