United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
the Court is Bernest Benjamin's show-cause response (Doc.
19) filed in connection with his 28 U.S.C. § 2254 habeas
petition (Doc. 1). Benjamin is proceeding pro se and
in forma pauperis. For the reasons below, the Court
must dismiss the petition.
challenges two separate state convictions, Nos.
D-202-CR-2008-5308 and D-202-CR-2008-2766. (Doc. 1 at 4). In
the first case, Benjamin pled nolo contendere to kidnapping.
See No. D-202-CR-2008-5308. In the second case, Benjamin
pled nolo contendere to battery upon a peace officer and
driving under the influence of drugs or alcohol. See
No. D-202-CR-2008-2766. The state court entered Judgment on
both convictions on the same date - March 22, 2010.
See Nos. D-202-CR-2008-5308 and D-202-CR-2008-2766.
Benjamin did not appeal either Judgment, and he was released
from jail in the following year. Id.
2011 and 2014, the state court revoked Benjamin's
probation several times. Id. In 2013, Benjamin filed
his first § 2254 petition challenging the revocation of
probation. See Benjamin v. Nance, 13-cv-0629 MV-CG.
The Court dismissed the petition without prejudice for
failure to exhaust state remedies. (Doc. 20 in 13-cv-0629
MV-CG). Benjamin returned to state court and filed habeas
petitions and miscellaneous pro se motions, which
were all denied. See Nos. D-202-CR-2008-5308 and
filed the instant § 2254 proceeding on December 29,
2017. (Doc. 1). He challenges both state court convictions as
well as the subsequent revocation proceedings. Id.
By a Memorandum Opinion and Order entered April 9, 2018, the
Court directed Benjamin to show cause why the petition should
not be summarily dismissed. (Doc. 7). The Court noted the
petition appears to be time-barred, as the convictions became
final more than seven years before Benjamin filed the instant
action. See 28 U.S.C. § 2244(d)(1)(A)
(Petitions 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). The petition also
appears moot because Benjamin was released from custody in
January 2018. (Doc. 1 at 37; Doc. 3). A released petitioner
can only prevail under § 2254 where “a wrongful
criminal conviction has continuing collateral
consequences.” Spencer v. Kemna, 523 U.S. 1, 7
(1998). Where, as here, the petitioner has completed his
sentence following a revocation proceeding, the Court
presumes there are no continuing collateral consequences
unless he proves otherwise. See United States v.
Meyers, 200 F.3d 715, 719 (10th Cir. 2000).
filed his show-cause response on August 27, 2018. (Doc. 19).
He declines “to argue mootness, ” alleging
“it is satisfied by Spencer v. Kemna 523 U.S.
1, 7 (1998).” Id. at 1. The Court specifically
cited Spencer in its prior Order and determined the
petition is moot under the reasoning of that case. Benjamin
has not cited any additional facts that would change the
analysis under Spencer, nor has he described what
collateral consequences, if any, he still faces because of
the conviction. The petition is therefore moot.
show-cause response is also insufficient to overcome the
time-bar. As the Court previously noted, he filed the §
2254 petition over seven years after entry of the criminal
judgments. Benjamin contends the one-year limitation period
was tolled under 28 U.S.C. § 2244(d)(2) because he filed
various state habeas petitions. (Doc. 1 at 2-3).
Specifically, he alleges his convictions became final on
April 9, 2014; he filed a state habeas petition on October
31, 2014; and the habeas proceedings were finally resolved in
November 2017. Id. The response gives no indication
why Benjamin believes the criminal judgments entered March
22, 2010 became final in 2014. It is well-established that,
absent an appeal, a criminal conviction becomes final upon
the expiration of the state appeal period. See Locke v.
Saffle, 237 F.3d 1269, 1271-1273 (10th Cir. 2001). The
New Mexico appeal period is 30 days, meaning the conviction
became final on April 21, 2010, and the one-year limitation
period expired on April 21, 2011. See 28 U.S.C.
§ 2244(d); NMRA, Rule 12-201 (providing that a notice of
appeal must be filed within 30 days after entry of the
judgment). Therefore, Benjamin's 2014 state habeas
petitions did not restart the clock or otherwise immunize the
untimely federal petition. See Gunderson v. Abbott,
172 Fed. App'x. 806, 809 (10th Cir. 2006) (unpublished)
(“A state court [habeas] filing submitted after the
… deadline does not toll the limitations
period.”); Fisher v. Gibson, 262 F.3d 1135,
1142-43 (10th Cir. 2001) (same).
foregoing reasons, the Court will dismiss Benjamin's
§ 2254 petition as untimely and moot. The Court will
also deny a certificate of appealability under Habeas Corpus
Rule 11, as Benjamin failed to make a substantial showing
that he has been denied a constitutional right.
IS ORDERED that Bernest Benjamin's habeas corpus
petition under 28 U.S.C. § 2254 (Doc. 1) is
DISMISSED WITH PREJUDICE; a certificate of
appealability is DENIED; and judgment will
 The Court took judicial notice of the
state court criminal dockets. See United States v.
Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(courts have “discretion to take judicial notice of
publicly-filed records … concerning matters that bear