United States District Court, D. New Mexico
JASON P. HINZO, Petitioner,
GERMAN FRANCO, Warden Respondent.
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS
the Court is Jason Hinzo's Amended Petition for Writ of
Habeas Corpus (Doc. 4). Also before the Court are Hinzo's
motions to proceed in forma pauperis and for an
expedited/ summary disposition (Docs. 5, 7, 9, and 11). Hinzo
asks the Court to modify his term of parole and/or direct his
former warden to reimburse earned good-time credits. Based on
Hinzo's financial information, the Court finds he lacks
sufficient funds to pay the filing fee and will grant the
in formal pauperis motion (Doc. 5). See 28
U.S.C. § 1915(a). However, having reviewed the amended
petition under Habeas Corpus Rule 4, the Court will dismiss
this action without prejudice.
is serving a twenty-year sentence for aggravated assault on a
peace officer and possession of narcotics. The state court
entered judgment on the conviction and sentence on August 28,
2007. Hinzo filed a direct appeal and sought state habeas
relief, but he was ultimately unsuccessful. In 2013, Hinzo
filed a federal 28 U.S.C. § 2254 petition claiming
ineffective assistance of counsel, due process violations,
and improper sentence enhancements. (Doc. 1 in 1:13-cv-228
LH-SMV). The Court (Hon. C. Leroy Hansen) dismissed the
§ 2254 petition as untimely.
2017, Hinzo filed another habeas petition. The form did not
indicate whether he wished to proceed under 28 U.S.C.
§§ 2254 or 2241. He asked the Court to correct his
“judgment and sentence … concerning parole, to
allow for proper credit of earned good time.” (Doc. 1,
p. 2). By a Memorandum Opinion and Order entered November 6,
2017, the Court dismissed the petition and granted leave to
amend. The Court directed Hinzo to clarify three issues:
(A) Whether he was challenging the validity of his sentence
pursuant to 28 U.S.C. § 2254 or attacking its execution
under 28 U.S.C. § 2241;
(B) Why Hinzo believes his good time credits were
(C) The identity of Hinzo's current custodian/warden.
requirements are consistent with the minimum pleading
standards set forth in Habeas Rule 2. That rule requires a
petition to name the current warden; “specify all
grounds for relief;” “state the facts supporting
each ground;” and “state the relief
requested.” Habeas Corpus Rule 2(a) -
filed an amended petition on the § 2241 form, but it did
not contain the above information. The amended petition again
indicates Hinzo is challenging both the validity and
execution of his sentence. New Mexico warden German Franco is
named as the Respondent, while the petition indicates Hinzo
is incarcerated in South Dakota. The amended petition also
fails to explain the circumstances surrounded the denial or
revocation of good time credits. Hinzo attempts to provide
additional explanation in his motion for summary disposition
(Doc. 9). He notes he has been transferred back to New
Mexico, and appears to waive any challenge under § 2254.
Even if the Court were to liberally construe the motion as
another amendment to the habeas petition, Hinzo still fails
to identify his current custodian. He also fails to
sufficiently explain why he believes his former custodian
(German Franco) improperly revoked good time credits, or how
any alleged reordering of his consecutive sentences impacted
those credits. Without this information, the Court cannot
order an answer to the petition. See United States v.
Harris, 579 Fed. App'x 657, 661-62 (10th Cir. 2014)
(District courts are not required to “coble
together” related documents in a habeas proceeding
“with the aim of weaving together a substantive
argument for relief”).
on the foregoing, the Court will dismiss the amended petition
(Doc. 4) without prejudice and deny the motions seeking
expedited or summary relief (Docs. 7, 9, and 11). Hinzo may
refile his claims, as “Section 2241 does not limit the
number of applications a prisoner may bring.”
Kirkland v. English, 2018 WL 6266132, *2 (10th Cir.
Nov. 30, 2018) (citing 28 U.S.C. § 2241)). If Hinzo does
file a new petition, he is again warned that he must include
the name of his current warden as the party
respondent. The fact that German Franco revoked the credits
is irrelevant; the only person who can remedy the alleged
violation is the current warden. See Rumsfeld v.
Padilla, 452 U.S. 426, 442-43 (2004); Habeas Corpus Rule
2(a). Further, to the extent Hinzo is having trouble
articulating his argument, it may be helpful to attach any
underlying state court documents to a new petition.
ORDERED that Hinzo's application to
proceed in forma pauperis (Doc. 5) is
FURTHER ORDERED that Hinzo's remaining
motions for expedited or summary relief (Docs. 7, 9, and 11)
FINALLY ORDERED that Hinzo's Amended
Petition for Habeas Corpus (Doc. 4) is DISMISSED