United States District Court, D. New Mexico
RAYMOND M. MARTINEZ, Petitioner,
DWIGHT SIMS and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents.
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
HONORABLE GREGORY J. FOURATT UNITED/STATES MAGISTRATE JUDGE.
the Court is Raymond Martinez's habeas corpus petition
under 28 U.S.C. § 2254 [ECF. No. 1]. Martinez challenges
his state court convictions for criminal sexual penetration
and enticement of a child based on, inter alia, ineffective
assistance of counsel. For the reasons below, the Court will
require Martinez to show cause why his habeas petition should
not be dismissed as untimely.
convicted Martinez of the above-mentioned charges on June 28,
2007. ECF. 1 at 1; Case No.
D-101-CR-2006-00431. The state court sentenced him to eighteen
years imprisonment. ECF. 1 at 1. Judgment on the conviction
and sentence was entered February 18, 2008. See
Judgment/Order in D-101-CR-2006-00431. Martinez appealed, and
the New Mexico Court of Appeals affirmed the judgment by a
mandate issued May 3, 2011. ECF. No. 1 at 2-3. Martinez did
not appeal further. The judgment therefore became final no
later than June 2, 2011, after the expiration of the 30-day
period for seeking additional review. See Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (A
petitioner's judgment becomes final for purposes of
§ 2254 when the time for seeking state appellate review
expires); NMRA, Rule 12-502 (providing that a “petition
for writ of certiorari shall be filed with the Supreme Court
clerk within thirty (30) days after final action by the Court
was no substantive activity in Martinez's criminal case
between 2012 and 2014. See Case No.
D-101-CR-2006-00431. On July 23, 2014, he filed a state
habeas petition. ECF No. 1 at 4. The state court denied the
petition, and he continued to file various pro se
collateral attacks through 2018. Id. at 4-19. The
New Mexico Supreme Court denied Martinez's most recent
petition for writ of certiorari on May 15, 2018. Id.
at. 19. On June 15, 2018, Martinez filed the instant §
2254 petition. ECF No. 1.
Timeliness of the 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).
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 [or her] control.” Marsh v. Soares, 223
F.3d 1217, 1220 (10th Cir. 2000).
one-year limitation period appears to have expired in June
2012, about six years before Martinez filed his federal
§ 2254 petition. The filing of his state habeas
petitions after the expiration of the limitation period did
not - as Martinez may believe - 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) (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.…”). The Court will therefore require
Martinez to show cause within thirty (30) days of entry of
this Order why his habeas petition should not be dismissed as
untimely. Failure to timely comply may result in dismissal of
the habeas action without further notice. See 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).
IS THEREFORE ORDERED that within thirty (30) days of
entry of this Order, Martinez must file a response showing
cause, if any, why his § 2254 ...