United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is Jose Gamez's habeas corpus petition under 28
U.S.C. § 2254 (Doc. 1, supplemented by Doc. 6). Gamez
asks the Court to vacate his state murder conviction based
on, inter alia, ineffective assistance of counsel. Having
reviewed the matter sua sponte under Habeas Corpus
Rule 4, the Court will dismiss the petition as untimely.
February 2010, Gamez pled guilty to second degree murder in
New Mexico's Seventh Judicial District Court, No.
D-725-CR-2008-00089. He was sentenced to 12 years imprisonment.
See Doc. 1 at 1. Judgment on his conviction and
sentence was entered on March 1, 2010. Id; Final
Judgment in No. D-725-CR-2008-00089. In accordance with the
plea agreement, Gamez did not file an appeal. Id;
Doc. 6 at 1. The Judgment therefore became final no later
than April of 2010, when the appeal period expired. See
Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)
(explaining that a petitioner's judgment becomes final
for purposes of § 2254 when the time for seeking state
appellate review expires); NMRA, Rule 12-201 (providing that
a notice of appeal must be filed within 30 days after entry
of the judgment).
six years later in April 2016, Gamez filed a state habeas
corpus petition. See NTC: Notice in No.
D-725-CR-2008-00089. The state court denied the petition on
June 6, 2016, and the New Mexico Supreme Court
("NMSC") denied his petition for writ of certiorari
on July 26, 2017. See Doc. 1 at 2; NMSC No.
S-l-SC-35980. On January 24, 2018, Gamez 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
April, 2011 (i.e., one year the Judgment became
final), and Gamez filed his § 2254 petition over six
years later on January 24, 2018. By a Memorandum Opinion and
Order entered February 9, 2018, the Court directed Gamez to
show cause why his § 2254 petition should not be
dismissed as untimely. See Doc. 2. Gamez filed a
Response on February 22, 2018. See Doc. 4. He notes:
"I did believe the one-year limitation period ...
restart[ed] after my filing/decision of the State Habeas
[Court]...." Id. at 1. However, as the Court
explained in its previous Order, "[a] state court filing
submitted after the ... [one-year] deadline does not toll the
limitations period." Gunderson v. Abbott, 172
Fed. App'x. 806, 809 (10th Cir. 2006) (unpublished).
See also Fisher v. Gibson, 262 F.3d 1135, 1142-43
(10th Cir. 2001) (noting the petitioner could not taking
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...."). Gamez is therefore not
entitled to relief under § 2244(d)(2).
Response also appears to seek equitable tolling. Gamez
argues: (1) the Federal Public Defender would not assist with
the habeas petition; (2) he had limited access to education,
research materials, and the applicable rules of procedure;
and (3) the Federal Court would not provide information about
how to file a § 2254 petition. See Doc. 4 at
1-2. Equitable 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). He 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).
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.Appx.
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). Mere
allegations "of insufficient access to relevant law ...
are [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). Gamez has not explained what, if
any, resources he requested, nor has he alleged that he tried
to obtain the resources prior to the expiration of the
one-year limitation period. His claims regarding lack of
legal assistance and materials therefore fail.
it is well established that the Court cannot give legal
advice. See Garrett v. Selby, Connor, Maddux &
Janer,425 F.3d 836, 840 (10th Cir. 2005) (noting the
"court cannot take on the responsibility of serving as
the litigant's attorney"). Equitable tolling is
therefore not warranted based on the lack of assistance from
the Court, and the petition must be dismissed as untimely.
See 28 U.S.C. § 2244(d)(1)(A). The Court will
also deny a certificate of appealability ...