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Bradford v. Bowen

United States District Court, D. New Mexico

October 2, 2019

MARK BRADFORD, Petitioner,
v.
MARK BOWEN, et al, Respondents.

          OPINION AND ORDER TO SHOW CAUSE

         This matter is before the Court on Petitioner Mark Bradford'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 his state criminal sentences for, inter alia, trafficking a controlled substance. 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.

         I. Procedural Background[1]

         In 2008 and 2009, Petitioner was arrested for various crimes involving illegal drugs, embezzlement, and racketeering. The charges generated three state criminal cases, No. D-202-CR-2008-05324; D-202-CR-2009-01434; and D-202-CR-2009-03556, which were consolidated before trial (together, the “Consolidated Cases”). On January 5, 2012, Petitioner signed a Consolidated Repeat Offender Plea and Disposition Agreement (“Plea Agreement”). Petitioner entered a no-contest plea to the following offenses: (1) trafficking cocaine; (2) escape from a community custody release program; and (3) conspiracy to commit racketeering. See Plea Agreement filed in the Consolidated Cases. The Plea Agreement contemplated a nineteen-year sentence followed by two years of parole. Id. The state court accepted the Plea Agreement and entered Judgment in each case on January 5, 2012. See Docket Sheets, Consolidated Cases. Petitioner did not appeal, and the Consolidated Cases reflect no docket activity for the next fifteen months. Id.

         On April 2, 2013, Petitioner filed state habeas petitions in each of the Consolidated Cases. See Docket Sheets, Consolidated Cases. The state court denied each petition on the same day, finding the plea was knowing and voluntary. See CLS: Order, Motion Denied entered April 2, 2013 in each Consolidated Case. Over the next six years, Petitioner continued to file state habeas petitions or other motions seeking post-judgment relief. See Docket Sheets, Consolidated Cases. The New Mexico Supreme Court (“NMSC”) denied certiorari relief in the most recent case on February 20, 2019. See Order Denying Petition in No. S-1-SC-37331.

         On April 10, 2019, Petitioner filed the instant § 2254 proceeding. See Doc. 1. Although the Petition cites the most recent Supreme Court ruling, No. S-1-SC-37331, it is clear Petitioner challenges his underlying convictions and sentence. He contends the no-contest plea was involuntary, and his custody is unconstitutional, because: (1) he did not receive advance copies of the sentencing report; (2) counsel was ineffective; (3) the convictions violate the Double Jeopardy Clause; and (4) his due process rights were violated.

         II. In Forma Pauperis Motion

         As an initial matter, Petitioner seeks to prosecute this habeas action without prepaying the $5 filing fee. In forma pauperis relief is available where the petitioner's statement of assets demonstrates he is unable to prepay the filing fee before commencing suit. See 28 U.S.C. § 1915(a). Petitioner's affidavit indicates he currently has no income or assets. (Doc. 2). The Court will therefore grant the Motion. Petitioner is reminded that even though prepayment is excused, he remains obligated to pay the $5 filing fee at a later time. See 28 U.S.C. § 1915(a).

         III. Initial Review of the § 2254 Petition

         The Petition is governed by Habeas Corpus Rule 4 and 28 U.S.C. § 2254. Habeas Corpus Rule 4 requires a sua sponte review of habeas petitions. “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief … the judge must dismiss the petition.” Habeas Corpus Rule 4. “If the petition is not dismissed, the judge must order the respondent to file an answer….” Id.

         Section 2254 petitions must generally be filed within one year after the defendant's conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The one-year limitation period can be extended:

(1) While a state habeas petition is pending, § 2244(d)(2);
(2) Where unconstitutional state action has impeded the filing of a federal habeas petition, § 2244(d)(1)(B);
(3) Where a new constitutional right has been recognized by the Supreme Court, § 2244(d)(1)(C); or
(4) Where the factual basis for the claim could not have been discovered until later, ...

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