United States District Court, D. New Mexico
ORDER OF DISMISSAL WITHOUT PREJUDICE
matter is before the Court, sua sponte. On June 19,
2018, the Court ordered pro se Petitioner Emery Gene Bradley
to show cause why his amended petition for writ of habeas
corpus under 28 U.S.C. § 2254 should not be dismissed,
since it was plain from the face of the amended petition that
Petitioner had failed to exhaust his state court remedies as
required by 28 U.S.C. § 2254(b)(1)(A). In response,
Petitioner submitted an unsigned letter titled “Failure
To Disqualify, ” which complains about the sentencing
judge's failure to disqualify herself from his state
criminal case. (Doc. 13). For the reasons explained below,
the Court concludes that Petitioner has failed to exhaust his
state court remedies and, therefore, his amended § 2254
petition (Doc. 7) will be dismissed without prejudice.
background of this case was set forth in the Court's June
19, 2018, Memorandum Opinion and Order To Show Cause and,
therefore, will be included herein only to the extent
necessary to determine whether Petitioner has fulfilled his
statutory obligation to exhaust his state court remedies. On
May 30, 2018, Petitioner filed an amended § 2254
petition challenging his New Mexico state criminal conviction
and sentence for driving while intoxicated. (See
Doc. 7). Petitioner's amended petition indicates that
Petitioner did not appeal from his judgment of conviction or
file a state petition for writ of habeas corpus.
(See Doc. 7 at 1, 3). The official state court
docket, which is available through the Supreme Court of the
State of New Mexico's Secured Online Public Access (SOPA)
service, confirms that Petitioner never filed an appeal or a
petition for writ of habeas corpus in state court. See
State of New Mexico v. Bradley, D-1116-CR-2016-01074,
CLS/Judgment/Sentence/Commitment (November 9, 2017).
Therefore, the Court ordered Petitioner to show cause why his
amended § 2254 petition should not be dismissed for
failure to exhaust state court remedies as required by 28
U.S.C. § 2254(b)(1)(A) (providing that “[a]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the
State”). (See Doc. 12).
response, Petitioner submitted an unsigned letter titled
“Failure To Disqualify, ” which contends that the
sentencing judge in Petitioner's state criminal case is
biased or prejudiced against him. (Doc. 13). Petitioner
argues that it “would be futile for [him] to seek
justice” in state court. (Doc. 13 at 2). Petitioner
appears to argue that he should be excused from the statutory
requirement to exhaust his state court remedies because
“circumstances exist that render such process
ineffective to protect [his] rights.” 28 U.S.C. §
is not required if an attempt to exhaust would be
futile.” James v. Gibson, 211 F.3d 543, 550
(10th Cir. 2000). The petitioner bears the burden to prove
that exhaustion of state court remedies would be futile.
See Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir.
2011). “The exhaustion requirement is not one to be
overlooked lightly. Principles of comity and federalism
demand that the requirement be strictly enforced.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir.
1995) (internal quotation marks and citation omitted).
conclusory allegations of judicial bias are insufficient to
establish that the state of New Mexico's post-conviction
process is ineffective to protect his rights. See Johnson
v. Werholtz, No. 07-3308-SAC, 2008 WL 5397500, at *4 (D.
Kan. Dec. 24, 2008) (holding that petitioner's conclusory
allegations of judicial bias were insufficient to establish
that exhaustion of state court remedies would have been
futile under § 2254(b)(1)(B)(ii)) (unpublished). Because
Petitioner has failed to establish that it would be futile to
exhaust his state court remedies, Petitioner's amended
§ 2254 petition will be dismissed without prejudice.
See Demarest v. Price, 130 F.3d 922, 939 (10th Cir.
1997) (“Generally, when a habeas petitioner has failed
to exhaust his state court remedies, a federal court should
dismiss the petition without prejudice so that those remedies
may be pursued.”). Furthermore, the Court concludes
that Petitioner has failed to make “a substantial
showing of the denial of a constitutional right, ” 28
U.S.C. § 2253(c)(2), and, therefore, a certificate of
appealability will be denied. See Rule 11(a) of the
Rules Governing Section 2254 Cases In The United States
District Courts (“The district court must issue or deny
a certificate of appealability when it enters a final order
adverse to the applicant.”).
THEREFORE ORDERED that Petitioner's amended § 2254
petition (Doc. 7) is DISMISSED without prejudice for failure
to exhaust state court remedies; a certificate of
appealability is DENIED; and judgment will be entered.
Respondents Townsend, Londy,
and Rudolfo have been dismissed as parties to this action.