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Ordonez v. Smith

United States District Court, D. New Mexico

December 31, 2019

JEREMIAH ORDOÑEZ, Petitioner,
v.
KEN SMITH, Respondent.

          Jeremiah Ordoñez Los Lunas, New Mexico Petitioner pro se

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, filed October 2, 2017 (Doc. 1)(“Petition”). Petitioner Jeremiah Ordoñez proceeds in forma pauperis. See Order at 1, filed July 26, 2018 (Doc. 5). The Court determines that Petitioner Jeremiah Ordoñez may have failed to fully exhaust his state court remedies, the one-year statute of limitations bars his claims, and he is not eligible for relief on the merits under 28 U.S.C. § 2254. The Court will dismiss the Petition and grant Ordoñez leave to file an amended petition.

         FACTUAL AND PROCEDURAL BACKGROUND

         Ordoñez was convicted in a bench trial of murder and possession of a firearm as a felon in New Mexico state court on January 5, 2009. See State v. Ordoñez, No. D-619-CR-2007-00217, State of New Mexico, County of Luna, Sixth Judicial District Court. Judgment was entered on the conviction on June 10, 2009. See State v. Ordoñez, Judgment, Sentence and Commitment (June 10, 2009). Ordoñez appealed his conviction to the Court of Appeals of New Mexico. In his direct appeal, Ordoñez argued: (i) that his counsel was ineffective for allowing him to waive his right to a jury trial; and (ii) that he was not competent to stand trial and could not assist in his own defense. The Court of Appeals affirmed the conviction by Memorandum Opinion entered February 8, 2010. See State v. Ordonez, 2010 WL 3997930 at *1 (N.M. Ct. App. 2010)(unpublished).

         In its Memorandum Opinion, the Court of Appeals of New Mexico rejected the ineffective assistance of counsel argument, concluding that “counsel's performance did not fall below that of a reasonably skilled attorney, ” and that “counsel's decisions were made for sound strategic and tactical reasons.” State v. Ordonez, 2010 WL 3997930, at *1. The Court of Appeals of New Mexico also rejected his contention that he was not competent to stand trial. See 2010 WL 3997930, at *2. Before trial on the merits of his criminal charges, the state court conducted an evidentiary hearing on Ordonñez' competency, and made extensive findings of fact and conclusions of law, finding him competent to stand trial. The Court of Appeals of New Mexico affirmed the lower court's decision, relying on a behavioral health specialist's report, in which the specialist concluded that Ordoñez was competent, his test scores suggested symptom exaggeration and malingering, and he was likely feigning mental illness and engaging in disruptive and uncooperative behavior in an effort to have his charges dismissed. See 2010 WL 3997930 at *2-3. Ordoñez filed a petition for writ of certiorari to review the Court of Appeals' decision, which the Supreme Court of New Mexico denied on March 10, 2010. See State v. Ordonez, No. S-1-SC-3229.

         Ordoñez did not file a New Mexico state Petition for Writ of Habeas Corpus until October 19, 2016. Ordoñez raised the same issues in his state habeas corpus petition that he had raised in his direct appeal. See Petition at 16-23. The State District Court summarily dismissed the petition on December 5, 2016, concluding that the Court of Appeals of New Mexico's prior determination of both issues was dispositive of the habeas corpus proceeding. See Ordoñez v. Martinez, Order Dismissing Petition for Writ of Habeas Corpus, D-619-CR-2007-00217 (December 5, 2016). Ordoñez did not seek review of the dismissal of his habeas corpus petition in the Supreme Court of New Mexico.

         Ordoñez then filed his Petition in this Court on October 2, 2017. In his Petition, Ordoñez challenges his state criminal convictions for murder in Case No. D-619-CR-2007-00217. See Petition at 1. Ordoñez states the grounds for his Petition as: “Ground One: Self-Defense Man tried to kill me”; and “Ground Two: City Law State Law A man tried to kill me.” Petition at 6-8. In response to questions regarding post-conviction state proceedings, exhaustion of state court remedies, and statute of limitations, Ordoñez denies knowledge of the answers to the questions on the grounds that he is “mentally disabled, ” “mentally retarted, ” and “mentally not stable, slow, mentally.” Petition at 3-7. His Petition does not contain any request for relief. See Petition 1 at 15.

         Ordoñez' Petition also directs the Court to “SEE: ALL ATTACHMENTS.” Petition at 6-8, 11. Attached to the Petition are: (i) his state court Petition for Writ of Habeas Corpus, see Petition at 16-23; (ii) a handwritten note regarding enclosure of the Judgment and Sentence in his criminal case, see Petition at 24; (iii) the state court's Commitment to Penitentiary, see Petition at 25-26, (iv) five pages of handwritten notes regarding mental health treatment and medical services administration, see Petition at 27-31; (v) an Order Suppressing Defendant's Statements in a separate state court criminal proceeding, see Petition at 32-33; and (vi) a partial copy of the Tenth Circuit's decision in Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), see Petition at 24-26. The attachments do not include the referenced copy of the state court's Judgment. The Court has reviewed, however, the official record of proceedings in cause No. D-619-CR-2007-00217 through the Supreme Court of New Mexico's official Secured Online Public Access (“SOPA”), and takes judicial notice of the records in that case. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(stating 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).

         LAW REGARDING EXHAUSTION OF STATE COURT REMEDIES

         Section 2254 provides:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). When a state prisoner challenges his custody and seeks relief from his state court conviction and sentence, his sole federal remedy is a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Henderson v. Sec'y of Corr., 518 F.2d 694, 695 (10th Cir. 1975). Before a prisoner may proceed on a habeas corpus petition in federal court, however, the prisoner must demonstrate that he has exhausted any remedies available in the state courts. Section 2254 states:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that --
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The issue of exhaustion of state court remedies is a threshold question that must be addressed in every habeas case. By statute, federal habeas relief is not available to a state prisoner “unless it appears that the applicant has exhausted the remedies available in the courts of the State, ” there “there is either an absence of available State corrective process, ” or “the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b). Under § 2254(b), a prisoner in state custody must exhaust his available state court remedies before he may proceed with a habeas corpus petition in federal court. For a federal court to consider a federal constitutional claim in an application for habeas, the claim must be “fairly presented to the state courts” in order to give state courts the “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012).

         The general rule under 28 U.S.C. § 2254(b)(1) is that federal habeas corpus relief may not be granted unless the applicant has exhausted the remedies available in the state courts. The exhaustion requirement is satisfied only if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a post-conviction attack. See Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). Federal courts are not to grant a writ of habeas corpus unless the prisoner has given the state courts a full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process. See Tanguma v. Golder, 177 Fed.Appx. 829, 830 (10th Cir. 2006)(unpublished).[1] Before seeking a federal court remedy, then, a state prisoner must exhaust his remedies in state court, demonstrate that there is an absence of available state remedies, or show that circumstances exist that render the state process ineffective to protect the petitioner's rights. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A habeas petitioner bears the burden of demonstrating that he or she has exhausted his available state remedies. See McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009).

         The exhaustion doctrine began as a judicially crafted instrument, and Congress then codified the exhaustion rule in 1948. The doctrine reflects a careful balance between federalism's important interests, and the need to preserve the writ of habeas corpus as a “swift and imperative remedy in all cases of illegal restraint or confinement.” Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 490 (1973)(quoting Sec'y of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609 (H.L.)). While the exhaustion doctrine advances several interests, it is principally designed to protect the state court's role in the enforcement of federal law and prevent disruption of state judicial proceedings. See Rose v. Lundy, 455 U.S. 509, 518 (1982); Deters v. Collins, 985 F.2d 789, 794 (5th Cir. 1993). Federal courts apply the exhaustion doctrine as a matter of comity. The federal court should defer action on causes properly within its jurisdiction until the courts of the forum state with concurrent powers, already cognizant of the litigation, have had an opportunity to pass upon the matter. See Rose v. Lundy, 455 U.S. at 518.

         Because exhaustion is based on principles of comity, it is not jurisdictional. See Patterson v. Leeke, 556 F.2d 1168, 1170 (4th Cir. 1977). “Although there is a strong presumption in favor of requiring a state prisoner to pursue his available state remedies, his failure to do so is not an absolute bar to appellate consideration of his claims.” Granberry v. Greer,481 U.S. 129, 131 (1987). Where state procedural obstacles preclude an effective state remedy against unconstitutional convictions, federal courts may grant relief in the collateral proceeding without requiring exhaustion. See Bartone v. ...


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