United States District Court, D. New Mexico
OPINION AND ORDER TO SHOW CAUSE
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
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.
Procedural Background 
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.
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
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.
In Forma Pauperis Motion
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. §
Initial Review of the § 2254 Petition
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.
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
(1) While a state habeas petition is pending, §
(2) Where unconstitutional state action has impeded the
filing of a federal habeas petition, ...