Kenneth v. Martinez
Kenneth v. Martinez
Opinion
Eric Paul Kenneth, acting pro se, seeks a certificate of appealability (COA) to appeal from the denial by the United States District Court for the District of New Mexico of his application for relief under
In 2013, Mr. Kenneth was convicted in New Mexico state court of kidnapping, aggravated battery, criminal sexual contact with a deadly weapon, and impersonating a peace officer. His convictions were affirmed by the New Mexico Court of Appeals on November 12, 2015, and the New Mexico Supreme Court denied his petition for a writ of certiorari on January 5, 2016. He did not file a petition for certiorari with the United States Supreme Court. On June 7, 2016, he filed a motion for modification of sentence in state court; the court denied the motion on June 29, 2016. On July 24, 2017, he filed a petition for writ of habeas corpus in state court. The trial court denied the petition, and the New Mexico Supreme Court denied certiorari on August 21, 2017. He filed his § 2254 application in federal court on November 29, 2017. The magistrate judge issued an order to show cause why the application should not be dismissed as untimely, and after Mr. Kenneth responded, the district court dismissed the application as barred by the one-year limitations period in § 2244(d)(1).
"When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."
Slack v. McDaniel,
The district court correctly invoked the procedural bar imposed by § 2244(d)(1) to dispose of this case. Under that provision a prisoner's § 2254 application must ordinarily be filed within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." § 2244(d)(1)(A). Mr. Kenneth's conviction became final upon expiration of the time to seek direct review through a petition for certiorari to the United States Supreme Court, which was April 4, 2016-90 days after the New Mexico Supreme Court denied his petition for certiorari.
See Harris v. Dinwiddie,
None of the other provisions of § 2244 afford Mr. Kenneth an extension of the limitations period that would render his application timely. Under § 2244(d)(2), "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." But even if we assume that his state motion for modification of sentence qualifies as an application for collateral review, it would toll the limitations period for only 52 days-the 22 days from June 7 to June 29, 2016, plus 30 days to seek appeal,
see
NMRA Rule 12-201(A)(1)(b). And he is not entitled to any additional extension based on the filing of his state petition for postconviction relief in July 2017, because it was filed after expiration of the one-year limitations period (even with a 52-day extension).
See Clark v. Oklahoma,
On appeal Mr. Kenneth argues that he lacked access to the factual record necessary to assert certain claims, and thus that the limitations period should be measured from "`the date on which the factual predicate of [the] claim or claims presented could have been discovered through the exercise of due diligence.'" Aplt. Br. at 5-6 (quoting § 2244(d)(1)(D)). But this argument was not presented to the district court, so we will not consider it.
See United States v. Viera,
Nor is Mr. Kenneth entitled to equitable tolling of the limitations period. A habeas applicant is "entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing."
Holland v. Florida,
He also asserts that he had difficulty obtaining a recording of trial proceedings, which was necessary to prove ineffective assistance of counsel. But he does not identify any reason that the recording was necessary to pursue that claim; he simply points to relatively minor discrepancies between the recording and the printed transcript. In any event, this court has repeatedly rejected the argument that difficulty in obtaining trial records constitutes "extraordinary circumstances" justifying equitable tolling.
See, e.g., Levering v. Dowling,
Finally, Mr. Kenneth asserts that he is actually innocent of the offenses of which he was convicted, and thus we should consider his untimely application to avoid a
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miscarriage of justice.
See McQuiggin v. Perkins,
We DENY the application for a COA and DISMISS the appeal. We GRANT Mr. Kenneth's motion to proceed in forma pauperis.
Reference
- Full Case Name
- Eric Paul KENNETH, Petitioner - Appellant, v. R. MARTINEZ, Warden; Hector Balderas, Attorney General of the State of New Mexico, Respondents - Appellees.
- Status
- Unpublished