United States District Court, D. New Mexico
MICHAEL F. CHAVEZ, Petitioner,
GERMAN FRANCO, Warden; and STATE OF NEW MEXICO, Respondents.
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
Chavez, an inmate confined at the Penitentiary of New Mexico,
petitions for a writ of habeas corpus under 28 U.S.C. §
2254. On August 9, 2011, Chavez pleaded guilty to two counts
of felony murder, N.M. Stat. Ann. § 30-2-1(A)(2). (Doc.
15-1, at 3-6). The state court sentenced Chavez to concurrent
terms of life in prison. (Doc. 15-1, at 1-2). As grounds for
collateral relief, Chavez claims: (1) his plea was
involuntary; (2) the evidence against him was unlawfully
seized; (3) police interrogated him after he invoked his
right to remain silent; (4) his trial and habeas counsel were
constitutionally ineffective; and (5) the trial judge was
biased. (Doc. 1). Respondents argue that these claims are
barred by the Antiterrorism and Effective Death Penalty
Act's (“AEDPA”) one-year statute of
limitation, 28 U.S.C. § 2241. (Doc. 15). Although Chavez
initially claimed AEDPA's year stopped while his first
federal habeas case was under consideration, he now concedes
that this earlier proceeding did not toll the limitations
period for the claims now before this Court. (Docs. 16, 17,
18). As a result, the sole issue is whether the doctrine of
equitable tolling saves Chavez's concededly untimely
petitioner is entitled to equitable tolling only if he shows
(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotation marks and
citations omitted). Equitable tolling is appropriate
“only in rare and exceptional circumstances.”
Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir.
2011). At bottom, Chavez blames his state post-conviction
attorney for failing to present all grounds for collateral
relief to the New Mexico Supreme Court. If counsel had done
so, then the instant claims would not have expired before
Chavez had the opportunity to return to the state court to
exhaust them. And since learning of counsel's failure,
Chavez says, he has acted diligently by immediately seeking
relief in the state court and refiling his petition here.
“serious misconduct” by post-conviction counsel
may constitute an extraordinary circumstance beyond a habeas
petitioner's control, a “garden variety claim of
excusable neglect” by the attorney does not satisfy the
rare-and-exceptional-circumstance standard for tolling.
See Holland, 560 U.S. at 649. Whether tolling
applies, therefore, depends on specific facts showing more
than mere attorney negligence. Here, Chavez has not carried
his burden. Merely blaming an attorney without
“evidence demonstrating that despite[Chavez's]
diligence, his attorney acted extraordinarily in failing [to
present all Chavez's alleged grounds for habeas
relief]” is insufficient. Santini v. Clements,
498 Fed.Appx. 807, 810 (10th Cir. 2012). Without details, the
Court is left to speculate what communication Chavez had with
his attorney and what direction, if any, Chavez gave to
post-conviction counsel. Chavez's assignment of blame
does not excuse his failure to timely file the instant
petition for habeas corpus.
IS, THEREFORE, RECOMMENDED that Chavez's
petition for habeas corpus be DISMISSED with
prejudice as untimely.
FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT
PARTY MAY, PURSUANT TO 28 U.S.C § 636(B)(1), FILE
WRITTEN OBJECTIONS TO SUCH PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS WITH THE CLERK
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT
PARTY WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO
APPELLATE REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P.
72(B)(2), A PARTY MAY RESPOND TO ANOTHER PARTY'S
OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH
A COPY OF THE OBJECTIONS.
 The cases on which Chavez relies do
not change the analysis. Both York v. Galetka, 314
F.3d 522 (10th Cir. 2003) and Duncan v. Walker, 533
U.S. 167 (2001) addressed the sweeping changes Congress's
enactment of AEDPA made and confusion created as to whether a
pending federal habeas corpus case tolled the limitations
period. York addressed a perceived injustice as the
federal courts transitioned to Duncan's holding
that a pending federal case did not toll AEDPA's year.
Duncan's rule has been firmly established for
nearly two decades now and does not present the same equity
concerns in this case. In any event, neither York nor