Opinion
No. CIV 01-1137 JP/LCS.
February 5, 2002.
O R D E R
THIS MATTER came before the Court on Respondents Motion to Dismiss (Doc. 11), filed December 17, 2001. Petitioner filed a Response to this Motion on January 15, 2002 . The United States Magistrate Judge, having considered the Motion, Response, Answer, applicable law, and being otherwise fully advised, declines to address this Motion at present and sets the following deadlines so that the issues raised in the Motion may be addressed on the merits. Petitioner, proceeding pro se and in forma pauperis, is serving a life sentence pursuant to the Judgment and Sentence, dated February 20, 1998, in the case styled State of New Mexico v. Tommy Turner and numbered CR 95-90FR, Fifth Judicial District, County of Lea, State of New Mexico.
After he was convicted by jury verdict of first degree murder, Petitioner was sentenced to life imprisonment, to be followed by five years parole. (Answer, Ex. A.) On March 2, 1998, Petitioner, through trial counsel Glenn Williamson, Esq ., filed a Motion for New Trial. (Answer, Ex. B.) On March 3, 1998, the trial court denied this Motion. (Answer, Ex. C.) Petitioner, again through Mr. Williamson, filed a Notice of Appeal and a Docketing Statement. (Answer, Exs. D and E.)
On direct appeal to the New Mexico Supreme Court, Petitioner was represented by Lauren Baldwin, Esq. (Answer, Ex. G.) On appeal, Petitioner argued that the trial court erred in permitting the State to impeach his testimony using a prior juvenile conviction and by refusing a defense request to admit the results of a polygraph examination administered to a States witness. ((Answer, Ex. L.)
After briefing and oral argument, (Answer, Exs. G-K), the New Mexico Supreme Court affirmed Petitioners conviction on January 3, 2000. (Answer, Ex. L.)
On April 2, 2001, Petitioner, represented by Todd Hotchkiss, Esq., filed a petition for a writ of habeas corpus in the state district court, contending that Mr. Williamson rendered ineffective assistance of counsel. (Answer, Ex. N.) The State filed its Response on May 1, 2001. (Answer, Ex. O.) On May 22, 2001, the state district court denied the petition for a writ of habeas corpus in a one-page order without hearing or explanation. (Answer, Ex. P.) Petitioner filed petition for a writ of certiorari with the New Mexico Supreme Court on June 20, 2001, presenting the issues raised in the state habeas petition. (Answer, Ex. P.) On July 12, 2001, the New Mexico Supreme Court denied the petition for a writ of certiorari. (Answer, Ex. R.) Petitioner filed his federal Petition on October 1, 2001.
Petitioners convictions became final on April 3, 2000, 90 days after denial of certiorari by the state supreme court. See Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999) (holding a state court conviction does not become final until the time for filing a certiorari petition expires); Sup. Ct. R. 13 (time for filing certiorari petition expires 90 days after state supreme court rules). The one-year limitations period for filing a federal habeas corpus petition began to run on that date. 28 U.S.C. § 2244(d)(1)(A). On April 2, 2000, Petitioner filed his state habeas petition, (Answer, Ex. N.), tolling the one-year period. 28 U.S.C. § 2244(d)(2). The state habeas application remained pending until July 12, 2001, when the New Mexico Supreme Court denied the petition for a writ of certiorari. (Answer, Ex. R.) Thus, the § 2254 Petition, filed within one year of July 12, 2001, is timely under 28 U.S.C. § 2244(d).
Petitioner raises the following issues in his federal Petition:
I. Mr. Williamson rendered ineffective assistance of counsel by failing to investigate the States witnesses for past criminal acts or credibility while having a lack of physical evidence for trial.
II. Mr. Williamson rendered ineffective assistance of counsel by failing to adequately challenge Tommy Shanks credibility as a witness, after Mr. Shanks admitted on the stand during trial that he was untruthful in previous testimonies while under oath.
III. Mr. Williamson rendered ineffective assistance of counsel by failing to file a motion for disclosure of a confidential informant in a timely manner therefore failing to allow the right to confront and cross examine all witnesses.
Respondent has not raised the affirmative defense of failure to exhaust state remedies. The exhaustion doctrine requires a state prisoner to fairly present his claims to the state courts before a federal court will examine them. See Rose v. Lundy, 455 U.S. 509, 519 (1982). The claims presented herein are substantially similar to the claims presented to the Supreme Court of New Mexico through the state habeas petition. (Answer, Ex. P.) Therefore, Petitioner has exhausted state remedies with respect to these claims. See Picard v. Connor, 404 U.S. 270, 275 (1971). Respondent argues that Petitioner has failed to establish the two prongs of Stickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner is currently pro se and the record proper has not been produced. Petitioner is serving a life sentence and has raised issues of constitutional magnitude.
Under these circumstances, counsel should be appointed to represent Petitioner and the record proper should be produced by Respondent. After the record proper has been filed, counsel should brief the merits of Petitioners claims. The Motion to Dismiss should be not be addressed at this time.
Counsel should be appointed to represent Petitioner. Respondent should file the record proper. The merits of Petitioners claims should be fully briefed. The Motion to Dismiss should be addressed in conjunction with the merits.
WHEREFORE,
IT IS ORDERED that the Federal Public Defender is hereby appointed to represent Petitioner.
IT IS FURTHER ORDERED that the Clerk of Court shall take all steps necessary to appoint the Federal Public Defender to represent Respondent and shall provide the Federal Public Defender with a copy of this Order.
IT IS FURTHER ORDERED that Respondent shall file the record proper in this matter, including trial transcripts or tapes by MARCH 11, 2002 . IT IS FURTHER ORDERED that Petitioner shall file his brief-in-chief, including citations to the record proper, by MAY 10, 2002 . IT IS FURTHER ORDERED that Respondent shall file a response brief, including citations to the record proper, by JUNE 10, 2002 . IT IS FURTHER ORDERED that Petitioner may file a reply brief, including citations to the record proper, by JUNE 27, 2002 . IT IS FURTHER ORDERED that these deadlines shall not be extended in the absence of extraordinary circumstances and a hearing.