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Romero v. State

United States District Court, D. New Mexico

April 5, 2019

MICHAEL R. ROMERO, Petitioner,
v.
STATE OF NEW MEXICO, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Michael R. Romero. (Doc. 1). It clearly appears from the face of the Petition and the attachments submitted by Petitioner Romero that Petitioner's § 2254 claims are barred by the 1-year statute of limitations of 28 U.S.C. § 2244(d)(1). The Court will dismiss the Petition with prejudice as time-barred.

         Petitioner Michael R. Romero is proceeding pro se and in forma pauperis under 28 U.S.C. § 2254 and 28 U.S.C. § 1915. Petitioner Romero has a lengthy New Mexico criminal history, including a 1985 conviction for Armed Robbery, a 1986 conviction for Escape From Penitentiary, and a 1990 conviction for Escape from Penitentiary, Aggravated Burglary, Robbery, False Imprisonment (2 counts), and Possession of a Firearm by a Felon. See Romero v. Tansey, 46 F.3d 1024 (10th Cir. 1995); Romero v. State of New Mexico, 100 F.3d 967 (10th Cir. 1996). Petitioner Romero has filed seven habeas corpus petitions under 28 U.S.C. § 2254 attacking those prior convictions. (See CV 88-00311 JAP/LFG, CV 90-00601 JAP/JHG, CV 90-00649 JEC/LFG, CV 90-00650 JEC/LFG, CV 90-00651 JAP/LFG, CV 90-00994 HB/SB, and CV 94-00275 JAP/WD).

         In 2001, Petitioner was serving a lengthy sentence in the Penitentiary of New Mexico for the 1990 conviction. Romero was again indicted for Escape or Attempted Escape from Penitentiary in State of New Mexico, First Judicial District Court, Cause No. D-101-CR-2001-00345. The Court has reviewed the official record in Romero's state court proceedings through the New Mexico Supreme Court's Secured Online Public Access (SOPA) and takes judicial notice of the records in D-101-CR-2001-00345. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir.2007) (The Court may take judicial notice of publicly filed records in this court and other courts concerning matters that bear directly upon the disposition of the case at hand); Shoulders v. Dinwiddie, 2006 WL 2792671 (W.D.Okla.2006); Stack v. McCotter, 2003 WL 22422416 (10th Cir.2003).

         On October 5, 2001, Petitioner pled guilty to a lesser count of Tampering With Evidence. (Doc. 1 at 6). Judgment was entered on Petitioner's conviction and sentence on October 25, 2001. (Doc. 1 at 1). The Judgment, Partially Suspended Sentence and Commitment stated:

“IT IS THEREFORE ORDERED that the Defendant is sentenced to the Department of Corrections for eighteen (18) months for Tampering With Evidence; IT IS FURTHER ORDERED THAT the Defendant's sentence is enhanced by four (4) years as an Habitual Offender; therefore his total sentence is five (5) years and six (6) months; IT IS FURTHER ORDERED that one (1) year of the above sentence is suspended and that the Defendant shall be remanded to the custody of the Department of Corrections for a period of four (4) years and six (6) months. IT IS FURTHER ORDERED that Defendant shall be given zero days pre-sentence confinement credit, and that the sentence imposed in this case shall run consecutive to the time the Defendant is currently serving in the Department of Corrections in SF 87-655.”

(Doc. 1 at 13; Judgment, Partially Suspended Sentence and Commitment, No. D-101-CR-2001-00345, pp. 2-3).

         Consistent with his Repeat Offender Plea and Disposition Agreement, Petitioner did not file a direct appeal. (Doc. 1 at 12; Repeat Offender Plea and Disposition Agreement, No. D-101- CR-2001-00345, ¶ 5). Approximately seventeen years later, on August 17, 2018, Petitioner filed a Petition for Writ of Habeas Corpus in the First Judicial District Court. (Doc. 1 at 3). The First Judicial District Court denied the Petition for Writ of Habeas Corpus on October 30. 2018. (Doc. 1 at 12-14). The New Mexico Supreme Court denied a writ of certiorari to review the District Court's ruling on December 3, 2018. (Doc. 1 at 11).

         Romero filed his Petition in this Court on January 28, 2019. (Doc. 1). In his Petition, Romero challenges his sentence in First Judicial District Cause No. D-101-CR-2001-00345 under 28 U.S.C. § 2254. (Doc. 1 at 1). He claims that the Department of Corrections' 2001 finding that he was in possession of a key or key pattern was a finding of an institutional rule violation, not a criminal violation, and the violation should not have been referred for criminal prosecution. (Doc. 1 at 6). He further contends that his defense attorney, the District Attorney and the District Judge conspired to trick him into a guilty plea on the tampering with evidence charge. Although he was sentenced and judgment was entered in the record on October 25, 2001, he contends “said case was never filed by the New Mexico Department of Corrections until the day of Petitioner's parole release Dated: August 3, 2018” and his incarceration on the sentence constitutes false imprisonment. (Doc. 1 at 6). Petitioner Romero asks the Court to “[d]eclare him 100% innocent, dismiss/expunge the conviction-sentence-plea and order Petitioner's immediate release from illegal/unconstitutional confinement.” (Doc. 1 at 22).

         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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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