United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
H. RITTER UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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].
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.
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.
filed his second petition for writ of habeas corpus in state
court on August 10, 2016. [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].
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)
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