United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is David Joshua Sisneros' habeas corpus
petition under 28 U.S.C. § 2254 (Petition) (Doc. 1). He
asks the Court to correct his state court sentence for
attempted and completed criminal sexual contact of a child
under 13. See Doc. 1 at 6-7, 12. Specifically, he
contends New Mexico's indeterminate period of probation
following child sex crimes violates the Due Process Clause.
Id. For the reasons below, the Court must dismiss
the Petition as untimely.
pled guilty to the above charges on November 16, 2012.
See Doc. 1 at 12; Plea and Disposition Agreement
entered in No. D-202-CR-2009-00073. He was sentenced to a total
of 7.5 years imprisonment, but execution of the sentence was
fully suspended. See Doc. 1 at 13. The state court
placed Sisneros on supervised probation for “an
indeterminate period of … between five (5) and twenty
years (20) years.” Id. Judgment on the
conviction and sentence was entered December 3, 2012.
Id. at 12. In accordance with the plea agreement,
Sisneros did not file an appeal. See Doc. 1 at 5.
The Judgment therefore became final on January 3, 2013
following the expiration of the 30-day appeal period. 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).
state court docket reflects there was no further activity in
the criminal case, aside from a substitution of counsel.
See No. D-202-CR-2009-00073. On July 18, 2018,
Sisneros filed the federal § 2254 Petition. See
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. The
one-year limitation 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).
tolling may also 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).
Memorandum Opinion and Order entered August 29, 2018, the
Court directed Sisneros to show cause why the Petition should
be dismissed as untimely. See Doc. 4. The Petition
reflects the limitation period expired in January 2014, one
year after the conviction became final and over four years
before Sisneros filed his federal § 2254 action.
Id. at 4. The Memorandum Opinion and Order warned
that the failure to timely comply may result in dismissal of
the habeas action without further notice. Id. See also
Hare v, Ray, 232 F.3d 901 (10th Cir. 2000) (the district
court may sua sponte dismiss an untimely Section
2254 petition where the petitioner fails to identify
circumstances that would support tolling).
show-cause deadline expired on October 1, 2018. See
Doc. 4 at 3. Sisneros did not explain his filing delay or
attempt to demonstrate grounds for tolling. Instead, he filed
a Motion to Appoint Counsel (Doc. 5), arguing the Federal
Public Defender must participate in this case, and submitted
various letters from family members stating his sentence is
unduly harsh (Doc. 8). There is no constitutional right to
counsel in habeas proceedings, and a discretionary
appointment is not warranted at this stage in the case.
See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.
2008). Sisneros' appeals to equity are also unavailing,
as the one-year limitation period is a statutory requirement
the Court must enforce in every habeas case. See 28
U.S.C. § 2244(d); U.S. v. Greer, 881 F.3d 1241,
1245 (10th Cir. 2018) (“Before addressing the merits of
[a habeas] claim, [the petitioner] must show that he can
satisfy procedural requirements, ” including
timeliness). The Court will therefore deny the motion and
dismiss the Petition as untimely. Because Sisneros has not
“made a substantial showing of the denial of a
constitutional right, ” the Court will also deny a
certificate of appealability under Habeas Corpus Rule 11.
See 28 U.S.C. § 2253(c)(2).
IS THEREFORE ORDERED that the Motion to Appoint