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Barnes v. Bowen

United States District Court, D. New Mexico

October 31, 2019

TERRY BARNES, Petitioner,
v.
MARK BOWEN, et al, Respondents.

          OPINION AND ORDER TO SHOW CAUSE

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Terry Barnes' 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, kidnapping and indecent exposure. 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 2012, Petitioner pled guilty in New Mexico's Second Judicial District Court to the following charges: (1) aggravated indecent exposure; (2) kidnapping; (3) attempted sexual contact of a minor; and (4) aggravated burglary. (Doc. 1 at 1). The state court sentenced Petitioner to a total term of 34.5 years imprisonment. (Judgment in No. D-202-CR-2010-02798). Judgment on the conviction and sentence was entered January 17, 2012. Id. The state court amended the Judgment on October 17, 2013 to reflect an indeterminate period of parole. (Amended Judgment in No. D-202-CR-2010-02798). Petitioner did not initially appeal, and neither the state docket nor the petition reflects any case activity for the next 22 months. Id.

         On July 30, 2015, Petitioner filed a state habeas petition. (Doc. 1 at 3; Habeas Petition in No. D-202-CR-2010-02798). The state court denied the petition on March 16, 2016, finding the plea was knowing and voluntary. (CLS: Order on Writ of Habeas Corpus in No. D-202-CR-2010-02798). Over the next two years, Petitioner continued to file state habeas petitions or other motions seeking post-judgment relief. (Docket sheet in No. D-202-CR-2010-02798). It appears the New Mexico Supreme Court (“NMSC”) denied certiorari relief in connection with the most recent petition on June 12, 2018. (Doc. 1 at 51).

         On June 3, 2019, Petitioner filed the instant § 2254 proceeding. He contends his plea was involuntary due to ineffective assistance of counsel and incompetency. Petitioner filed an in formal pauperis motion to support the Petition, and the matter is ready for initial review.

         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, ...

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