United States District Court, D. New Mexico
OPINION AND ORDER TO SHOW CAUSE
KHALSA, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Jacob
Chavez-Garnett's 28 U.S.C. § 2254 Habeas Corpus
Petition (Doc. 1). Also before the Court is Petitioner's
Motion to Proceed In Forma Pauperis (Doc. 2).
Petitioner asks the Court to modify the order revoking
probation on his state criminal convictions. Having reviewed
the matter sua sponte under Habeas Corpus Rule 4,
the Court will grant the Motion but require Petitioner to
show cause why his Habeas Petition should not be dismissed as
untimely and unexhausted.
procedural history in this case is fairly complex. To better
interpret the citations in the Petition, the Court took
judicial notice of the state court docket in Petitioner's
criminal cases, No. D-1215-CR-2014-00497 and
D-1215-CR-2015-00127. See United States v. Ahidley,
486 F.3d 1184, 1192 n. 5 (10th Cir. 2007) (courts have
“discretion to take judicial notice of publicly-filed
records … concerning matters that bear directly upon
the disposition of the case at hand”); United
States v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir.
2010) (recognizing a court may take judicial notice of docket
information from another court).
April 22, 2015, Petitioner entered a no-contest plea to the
following offenses: (Count 1): aggravated assault with a
deadly weapon; (Counts 2 and 3): criminal damage to property;
(Count 4): failure to give immediate notice of accidents; and
(Count 5): battery against a household member. See
Doc. 1 at 1; Plea Agreement in No. D-1215-CR-2014-00497. The
state court sentenced Petitioner to 69 months'
imprisonment in No. D-1215-CR-2014-00497. That sentence was
to run consecutive with Petitioner's sentence in
D-1215-CR-2015-00127, for a total prison term of 87 months.
However, both sentences were fully suspended, and Petitioner
was placed on probation for five years in lieu of
incarceration. Id. The state court entered judgment
in both related cases on September 18, 2015. See No.
D-1215-CR-2014-00497 and D-1215-CR-2015-00127.
than two months later, the state prosecutor filed a motion to
revoke probation. See Petition filed November 5,
2015 in No. D-1215-CR-2014-00497. The prosecutor alleged
Petitioner committed aggravated battery with a deadly weapon.
Id. By an Order entered February 26, 2016, the state
court revoked probation and ordered Petitioner to serve both
sentences in full. See Order Revoking Probation in
No. D-1215-CR-2014-00497 and D-1215-CR-2014-00497. On April
12, 2016, Petitioner filed the first of several motions to
reconsider or correct the judgment. See Mtn to
Reconsider in No. No. D-1215-CR-2014-00497 and
D-1215-CR-2014-00497. The following timeline reflects the
state court docket activity between 2016 and
March 28, 2016: The revocation judgment becomes final
following the expiration of the 30-day appeal period. See
Locke v. Saffle, 237 F.3d 1269, 1271-1273 (10th Cir.
2001); NMRA, Rule 12-201.
April 12, 2016: Petitioner files the first motion to
reconsider in both cases.
April 28, 2017: The state court denies the motion in
Nov. 13, 2017: The state court denies the motion in
Dec. 13, 2017: Petitioner does not appeal, and the 30-day
period expires in both cases.
- 223 days pass with no activity in either case -
July 25, 2018: Petitioner files another motion to reconsider