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Chavez-Garnett v. State

United States District Court, D. New Mexico

June 25, 2019

JACOB CHAVEZ-GARNETT, Petitioner,
v.
STATE OF NEW MEXICO, et al., Respondents.

          OPINION AND ORDER TO SHOW CAUSE

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Procedural Background

         The 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).

         On 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.

         Less 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 2019.[1]

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 D-1215-CR-2014-00497.
Nov. 13, 2017: The state court denies the motion in D-1215-CR-2015-00127.
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 ...

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