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Savage v. Smith

United States District Court, D. New Mexico

April 4, 2019

AUBREY SAVAGE, Petitioner,
v.
R.C SMITH, Warden, and HECTOR H. BALDERAS, Attorney General for the State of New Mexico, Respondents.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Aubrey Savage's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”), which he filed pro se on October 6, 2017. [Doc. 1]. On November 28, 2017 the Court, sua sponte, ordered Respondents R.C. Smith and the Attorney General for the State of New Mexico to answer the Petition. [Doc. 3]. On December 15, 2017 United States District Judge Martha Vazquez referred the case to United States Magistrate Judge Jerry H. Ritter pursuant to 28 U.S.C. § 636(b)(1)(B) and (b)(3). [Doc. 7]. Respondents complied with the Court's Order, filing their Answer on March 5, 2018. [Doc. 11]. Petitioner filed his Reply on April 6, 2018. [Doc. 13]. Having carefully considered the parties' submissions and the relevant law, the undersigned recommends that Petitioner's claim for relief be DISMISSED with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         Petitioner is currently serving a term of life imprisonment plus eighteen months after he pled guilty to possession of a firearm by a felon and a jury found him guilty of first-degree willful and deliberate murder. [Doc. 11-1, pp. 1-3]. On January 25, 2010, Petitioner appealed to the New Mexico Supreme Court, which affirmed his convictions. [Doc. 11-1, pp. 7-9, 121-140]. Petitioner sought post-conviction relief by filing a petition for a writ of habeas corpus in state court on November 18, 2011. [Doc. 11-2, pp. 1-21]. After an evidentiary hearing, the petition was denied. [Doc. 11-2, pp. 50-52]. Petitioner's subsequent petition for a writ of certiorari was denied by the New Mexico Supreme Court on July 22, 2015. [Doc. 11-2, p. 66].

         Petitioner filed his first 28 U.S.C. § 2254 petition in this Court on December 7, 2015. See generally, Petition for Writ of Habeas Corpus, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 1. The Court found that the petition was mixed, “containing both exhausted and unexhausted claims.” Proposed Findings and Recommended Disposition, p. 1, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 20; Order Adopting Report and Recommendations, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 22. The Court gave Petitioner the option to either dismiss only the unexhausted claims, leaving the remaining claims for review or have the mixed petition dismissed in its entirety without prejudice. See Proposed Findings and Recommended Disposition, pp. 9-10, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 20.

         Petitioner moved to withdraw or stay the petition in its entirety while he pursued a writ of habeas corpus in state court relative to his unexhausted claims. See Motion to Withdraw or Stay the Habeas Petition, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 21. Petitioner expressly stated that he did not wish to have the Court address the merits of his exhausted claims. See Id. In granting Petitioner's motion to dismiss[2" name="FN2" id="FN2">2] the Court stated:

Petitioner is hereby advised that, for the purposes of the one-year limitations period within which any §2254 petition must be filed, the time during which his federal habeas petition was pending in this Court was not tolled. See York v. Galetka, 22');">314 F.3d 522, 524 (10th Cir. 2003). Petitioner should keep that fact in mind should he seek to re-file in federal court.

See Order Adopting Proposed Findings and Recommended Disposition and Granting Motion to Dismiss, p. 3, Savage, No. 15-cv-1102-MCA-GBW, ECF No. 22.

         Petitioner filed his second petition for writ of habeas corpus in state court on August 10, 2016.[3] [Doc. 11-2, pp. 67-78]. The petition was summarily denied on November 17, 2016 and Petitioner's subsequent petition for writ of certiorari to the New Mexico Supreme Court was denied on August 15, 2017. [Doc. 11-2, pp. 67-78, 116]. Petitioner filed the petition for writ of habeas corpus presently before the Court on October 6, 2017. [Doc. 1]. Respondents filed their Answer on March 5, 2018 arguing that the instant petition includes claims that have not yet been exhausted and that the petition in its entirety is time-barred. [Doc. 11, pp. 8-14].

         II. LEGAL STANDARDS

         Petitions for a writ of habeas corpus by a person in state custody under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) are governed by a one-year statute of limitations. 28 U.S.C. § 2244(d). Section 2244(d)(1) states:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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