United States District Court, D. New Mexico
ORDER TO SHOW CAUSE
the Court is Kenneth Dunn's habeas corpus petition under
28 U.S.C. § 2254 (Doc. 1). Dunn asks the Court to vacate
his state sentence for criminal sexual penetration,
aggravated battery, and kidnapping based on, inter alia,
ineffective assistance of counsel and due process violations.
For the reasons below, the Court will require Dunn to show
cause why his habeas petition should not be dismissed as
convicted Dunn of the above-mentioned charges on May 3, 2006.
See Doc. 1 at 1; Verdicts in No.
D-1329-CR-2003-00320. He was sentenced to 36 years imprisonment.
See Doc. 1 at 1. The state court entered Judgment on
Dunn's conviction and sentence on August 16, 2006.
Id.; Judgment and Sentence entered in No.
D-1329-CR-2003-00320. Dunn did not file an appeal.
See Doc. 1 at 2. The Judgment therefore became final
on August 16, 2006, when the 30-day appeal period expired.
See Locke v. Saffle, 237 F.3d 1269, 1271-1273 (10th
Cir. 2001) (For purposes of § 2254, the conviction
becomes final upon the expiration of the state appeal
period); NMRA, Rule 12-201 (providing that a notice of appeal
must be filed within 30 days after entry of the judgment).
three years later on March 8, 2010, Dunn filed a state habeas
petition. See Doc. 1 at 3. The state court denied
the petition on February 5, 2016. Id. Dunn sought
certiorari review with the New Mexico Supreme Court, but the
certiorari petition was denied by a mandate issued April 10,
2017. Id. at 6. On March 27, 2018, Dunn filed the
federal § 2254 petition (Doc. 1).
Timeliness of the § 2254 Petition
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. 28 U.S.C. §
2244(d)(1)(A). The one-year limitation period can be
(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 August
2007, nearly eleven years before Dunn filed his federal
§ 2254 petition in March 2018. Further, the filing of a
state habeas petition after the expiration of the one-year
period did not - as Dunn 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 postconviction proceedings because his
applications for post-conviction relief were not filed until
after … the end of the limitations
period.…”). The Court will therefore require
Dunn 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 § 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, Dunn must file a response showing
cause, if any, why his § 2254 ...