United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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. 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.
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).
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,
(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).
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).
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.
Statutory Tolling Under Section 2244(d)
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 ...