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Blake v. State

United States District Court, D. New Mexico

September 20, 2019

PRESTON J. BLAKE, Plaintiff,
v.
STATE OF NEW MEXICO, NEW MEXICO PUBLIC DEFENDER’S OFFICES AND ALL ATTORNEYS’ FOR THE PLAINTIFF THAT REPRESENTED HIMSEL, WARDEN AT PRESENT FOR L.C.C.F. SANTESTEVAN AT PRESENT, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; ETC. JOHN DOE/OR JANE DOE and SUSANA MARTINEZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         THIS MATTER is before the Court under 28 U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(b)(6) on the Complaint for Violation of Civil Rights filed by Plaintiff Preston J. Blake. (Doc. 1.) The Court will dismiss the Complaint for failure to state a claim on which relief can be granted.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff is a prisoner incarcerated at the Lea County Correctional Facility. (Id. at 2.) He was arrested in 2008 and charged in the New Mexico state courts. State v. Blake, No. D-911-CR-2008-00078. The Court takes judicial notice of the proceedings in his state court criminal action. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting that 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). On May 18, 2009, Plaintiff was convicted by a 12-person jury on charges of aggravated burglary (commits battery), conspiracy, two counts of receiving and disposing of stolen property, tampering with evidence, and attempt to commit a felony. He was sentenced as a habitual offender on June 4, 2009. With the application of eight-year habitual offender enhancements based on prior felony convictions, Plaintiff was sentenced to 41 years minus two days in prison. See State v. Blake, No. D-911-CR-2008-00078.

         Plaintiff appealed his state criminal conviction, contending that (1) the district court erred in allowing him to represent himself, (2) his motion for a continuance was improperly denied, (3) his speedy trial rights were violated, (4) his counsel was ineffective, and (5) his convictions were not supported by substantial evidence. See Blake v. Janecka, No. CIV 13-00454 LH/KBM, Respondents’ Answer (Doc. 12), Ex. BB (D.N.M. Aug. 22, 2013). The New Mexico Court of Appeals affirmed his conviction, (id.), and the New Mexico Supreme Court denied certiorari (id. Ex. DD). After completing the direct appeal process, Plaintiff filed a pro se state habeas petition, which the state district court denied; the New Mexico Supreme Court subsequently denied certiorari. (Id. Exs. GG, HH.) Not finding relief in the state courts, he filed a Petition for Writ of Habeas Corpus in this Court, raising the same issues he had raised in the state court proceedings. His Petition was denied on the merits. See id., Pet. (Doc. 1) & Order Adopting the Chief Magistrate Judge’s R&R (Doc. 30).

         Plaintiff filed his Complaint for Violation of Civil Rights on December 7, 2018. (Doc. 1.) He seeks to have the case proceed as a class action. (Id. at 1, 3, 15.) The Complaint identifies Eric Fierro, Augustin Granado, Jr., Jessy L. Garcia, and David Otero as additional plaintiffs “at the discretion of the Judge and Court, ” but the Complaint is signed solely by Plaintiff. (Id. at 1, 10, 14.) Plaintiff may not represent any other individual or maintain this case as a class action, and the additional individuals are not proper parties to this proceeding. Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1320 (10th Cir. 2000).[1]

         Plaintiff names, as Defendants, the State of New Mexico, the New Mexico Public Defender’s Offices, Warden at present for L.C.C.F. (Santestevan), Jane and John Does, Governor Susana Martinez, and attorney Jennifer Burrill. (Doc. 1 at 1, 11.) He again contends that his criminal defense counsel were ineffective, resulting in the imposition of an unreasonable sentence. (Id. at 4–7). Plaintiff prays for relief:

1. Ordering Defendants to pay punitive and compensatory damages.
2. Systematic change to the Public Defenders Dept. in as to the Attorney Contract System.
3. To be released from prison, and that my case be vacated or set aside
4. Awarding Plaintiffs the reasonable costs and expenses of their action including attorney’s fees.

(Id. at 9).

         II. PLAINTIFF IS GRANTED LEAVE TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915

         Pending before the Court is Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs. (Doc. 12.) Because the Court grants the application, the filing fee for this civil rights complaint is $350.00. Based on the information about Plaintiff’s financial status (id.), the Court will waive an initial partial payment pursuant to § 1915(b)(1). Plaintiff is still required to pay the full amount of the filing fee pursuant to § 1915(b)(1).

         III. THE LAW REGARDING ...


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