United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS
the Court is Jose Aponte-Delgado's habeas corpus petition
under 28 U.S.C. § 2254 (Doc. 1). Aponte-Delgado is an
inmate at the Otero County Prison Facility (OCPF) and is
proceeding pro se. He asks the Court to vacate his
state 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 dismiss the petition as untimely.
pled guilty to the above charges in 2008. He was sentenced to
16.5 years imprisonment. The state court entered Judgment on
his conviction and sentence on February 1, 2008.
Aponte-Delgado did not appeal. The Judgment therefore became
final no later than March 4, 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, No. D-202-CR-2006-04977.
February 8, 2018, Aponte-Delgado filed a state habeas
petition. The state court denied the petition on February 16,
2018, and the New Mexico Supreme Court denied his certiorari
on March 23, 2018. See Doc. 1 at 6; ORD: On
Writ/Habeas Corpus and ORD: Supreme Court in No.
D-202-CR-2006-04977. On April 19, 2018, Aponte-Delgado filed
the federal § 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).
petition reflects the one-year period expired no later than
December, 2014 (i.e., one year after the Amended
Judgment became final),  Aponte-Delgado filed his § 2254
petition over three years later on April 19, 2018. By a
Memorandum Opinion and Order entered May 10, 2018, the Court
therefore directed Aponte-Delgado to show cause why his
§ 2254 petition should not be dismissed as untimely. In
response, Aponte-Delgado argues equitable tolling applies
because English is his second language and he lacked legal
assistance/research materials. He also argues he was confined
in the mental health unit between 2012 and 2014, and the
state court denied him due process by amending his criminal
tolling “is only available when an inmate diligently
pursues his claims and demonstrates that the failure to
timely file was caused by extraordinary circumstances beyond
his control.” Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir. 2000). “[A]n inmate bears a strong
burden to show specific facts to support his claim of
extraordinary circumstances….” Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). The
inmate must provide “specificity regarding the alleged
lack of access and the steps he took to diligently pursue his
federal” petition. Miller v. Marr, 141 F.3d
976, 978 (10th Cir. 1998).
claims that he lacked legal resources fail as a matter of
law. The Tenth Circuit has held that the lack of counsel is
“not an extraordinary circumstance … because
there is no federal constitutional right to counsel in
collateral proceedings.” Weibley v. Kaiser, 50
Fed. App'x 399, 403 (10th Cir. 2002). See also
Marsh, 223 F.3d at 1220 (lack of timely assistance from
prison legal access attorney insufficient to support
equitable tolling). A bald claim “of insufficient
access to relevant law … is [similarly] not enough to
support equitable tolling.” Gibson v. Klinger,
232 F.3d 799, 808 (10th Cir. 2000). See also Miller,
141 F.3d at 978 (“It is not enough to say that the
… facility lacked all relevant statutes and case law
or that the procedure to request specific materials was
inadequate”); Parker v. Jones, 2008 WL 63304
(10th Cir. 2008) (holding mere allegations regarding lack of
access to library cannot support equitable tolling).
certain circumstances, a language barrier or mental health
confinement can support equitable tolling. See Yang,525 F.3d 925, 930 (10th Cir. 2008); Reupert v.
Workman, 45 Fed. App'x 852, 854 (10th Cir. 2002);
Sandoval v. Jones, 447 Fed. App'x 1 (10th Cir.
2011). However, the untimely filing must be traceable to
those issues. Id. Aponte-Delgado “has not set
forth what actions he pursued to secure assistance with his
language barrier, ” nor has he explained how it
prevented timely filing. Yang, 525 F.3d at 930.
Further, even crediting his assertions that he was heavily
medicated in a mental health unit between 2012 and 2014,
“he still falls short of explaining why it took [over]
three years to lodge his petition” after his release.
Morgan v. Addison, 574 Fed. App'x. 852 (10th
Cir. 2014). See also Reupert v. ...