United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on James Fitzpatrick's
Amended 28 U.S.C. § 2254 Habeas Petition
(Doc. 4). Fitzpatrick argues his state
murder sentence is excessive. Having reviewed the matter
sua sponte under Habeas Corpus Rule 4, the Court
will dismiss the Petition as meritless.
case arises from a fatal shooting in 2010. Fitzpatrick
contends he accidentally shot the victim. She remained in the
hospital for about 30 days after the incident, when her
family members chose to discontinue life support. Fitzpatrick
was charged with first-degree murder in New Mexico's
Ninth Judicial District Court (State Court), Case No.
D-905-CR-2010-654.He eventually pled guilty to second-degree
murder, and the State Court sentenced him to fifteen years
imprisonment. The final three years were suspended, and
Fitzpatrick was instead placed on three years of supervised
probation. In other words, the "total sentence"
consisted "of twelve (12) years incarceration followed
by three (3) years of supervised probation." Shortly
after entry of the Judgment, Fitzpatrick filed a motion to
reconsider the sentence. That motion remained pending until
July 18, 2017, when the State Court denied the motion.
filed the federal § 2254 proceeding in August 15, 2018.
Although the original filing appeared on the form prisoner
civil rights complaint, he clearly challenged his state
sentence as "illegal" and "unduly harsh."
(Doc. 1 at 2). The Court (Hon. Carmen Garza) therefore
entered a "Castro Order" informing
Fitzpatrick that his filing would be construed as a habeas
petition under 28 U.S.C. § 2254. (Doc. 2). The Court
also sent him a form § 2254 petition and allowed him to
amend his pleading "so that it contains all of the
§ 2254 claims he believes he has." Id.
(quoting Castro v. United States, 540 U.S. 375, 383
(2003)). Fitzpatrick filed an Amended Petition, which
consists of two handwritten, barely legible pages. He
reasserts the excessive-sentence claim and appears to allege:
(1) the prosecutor agreed not to charge Fitzpatrick for
murder if the victim died, but later reneged; (2) the
victim's death was "on [her] family" because
they discontinued life support; (3) the prosecutor used
"fake evidence" to obtain a conviction; and (4) all
court officials involved in the criminal prosecution were
biased. (Doc. 4 at 1-2). Fitzpatrick paid the $5 filing fee,
and the matter is ready for initial review.
Amended 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. To
survive initial review under § 2254, a petitioner must
allege facts showing his state conviction or sentence
violates federal law. See 28 U.S.C. § 2254
(relief is available where the petitioner "is in custody
in violation of the Constitution or laws or treaties of the
Amended Petition here clearly reflects that Fitzpatrick is
not entitled to habeas relief. His primary argument -
excessive sentencing - is meritless. Challenges to a state
sentencing decision are generally not "constitutionally
cognizable" in habeas proceedings "unless it is
shown that the sentence imposed is outside the statutory
limits or unauthorized by law." Dennis v.
Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). In other
words, federal "review of a sentence ends" if
"the sentence is within the limitation set by
statute." Id. Fitzpatrick pled guilty to second
degree murder in violation of N.M.S.A. 1978 § 30-2-l(B).
In New Mexico, that crime "carries a basic penalty of
fifteen years in prison." State v. Candelaria,
434 P.3d 297, 301 (N.M. 2018). Thus, Fitzpatrick's
sentence (fifteen years, with three suspended) is not
arguments about the State Court and the prosecutor also
plainly fail. He alleges the prosecutor agreed not to charge
Fitzpatrick for murder and used "fake evidence" to
obtain the conviction. Prosecutors have the sole discretion
to make charging decisions, see Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978), and, in any event,
there is no authority allowing Federal Courts to vacate a
state conviction because a prosecutor initially agreed not to
pursue murder charges, but changed course later in the
investigation. As to the "fake evidence" and bias
claims, Fitzpatrick was not convicted following a jury trial.
The state docket reflects Fitzpatrick accepted responsibility
for second-degree murder, after the charges were
"reduced from Murder in the 1st Degree."
Plea and Disposition Agreement entered May 23, 2011 in Case
No. D-905-CR-2010-654. In fact, he was explicitly notified of
the penalty in the plea agreement, which state: "For
Murder in the 2nd Degree, Defendant recognizes
that his exposure is up to 15 years incarceration and a $12,
500 fine." Id. While Fitzpatrick is
disappointed he did not receive the minimum sentence, his
subjective expectations do not demonstrate fraud or bias.
final argument - that he is not responsible for the
victim's death because her family discontinued life
support - is frivolous. The Court will therefore dismiss the
Amended Petition with prejudice. The Court will also deny a
certificate of appealability under Habeas Corpus Rule 11, as
Fitzpatrick has not "made a substantial showing of the
denial of a constitutional right" or demonstrated
reasonable jurists would find this ruling debatable.
See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
IS ORDERED that Amended 28 U.S.C. § 2254 Habeas
Petition (Doc. 4) is DISMISSED with
prejudice; a certificate of appealability is
DENIED; and a separate judgment will be
entered closing the civil case.
 The Court took judicial notice of the
state court criminal docket. See United States v.
Ahidley,486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(courts have "discretion to take judicial notice of
publicly-filed records ... concerning matters that bear