Romero v. Martinez
1:19-cv-00467
| D.N.M. | Apr 14, 2021Background
- Petitioner Andrew Romero was convicted following a guilty plea in New Mexico (judgment entered Sept. 12, 2006) and sentenced to 27.5 years in Cause No. D-1314-CR-2004-00192.
- Romero appealed; the New Mexico Court of Appeals affirmed and issued its mandate on May 8, 2009, after which he did not seek certiorari to the state supreme court.
- Romero filed his first state habeas petition on March 3, 2010; state courts denied relief and the New Mexico Supreme Court denied certiorari for his final post-conviction petition on October 29, 2018.
- Romero filed the instant federal § 2254 petition on May 20, 2019, asserting ineffective assistance of counsel, incompetency, coerced plea, and improper consecutive sentences.
- The magistrate judge reviewed the record (taking judicial notice of state filings) and concluded Romero’s federal petition appears untimely under the AEDPA one-year statute of limitations, triggering an order to show cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 28 U.S.C. § 2244(d)(1)(A) | Romero contends his claims should proceed despite possible untimeliness; he concedes delay but points to mental-health/ignorance. | The petition is untimely: finality on May 8, 2009; time ran and petition filed well after AEDPA year expired. | Court finds, on the face of the record, the petition appears time-barred and orders Romero to show cause. |
| State-postconviction tolling under § 2244(d)(2) | Romero relies on multiple state habeas filings to toll AEDPA. | Respondent/construing court: state petitions tolled the statute from Mar. 3, 2010 until Oct. 29, 2018. | Court applies tolling for that period, leaving only 66 days of the AEDPA year remaining after Oct. 29, 2018. |
| Effect of gaps between state filings | Romero implies filings and correspondence continued his equitable protection. | Record shows additional gaps between filings during which the limitations clock ran. | Court notes additional 90–120 day gaps existed but did not need to include them to conclude the petition is untimely. |
| Equitable tolling for mental incapacity/ignorance | Romero argues mental-health issues and ignorance justify relief/tolling. | Such generalized ignorance or claimed incompetence does not ordinarily qualify as extraordinary circumstances for equitable tolling. | Court indicates these showings are insufficient as pleaded and directs Romero to show cause if he can demonstrate diligence and extraordinary circumstances. |
Key Cases Cited
- United States v. Ahidley, 486 F.3d 1184 (10th Cir. 2007) (courts may take judicial notice of publicly filed records in other courts)
- Carey v. Saffold, 536 U.S. 214 (U.S. 2002) (state postconviction petition tolls AEDPA while pending)
- Holland v. Florida, 560 U.S. 631 (U.S. 2010) (statute of limitations resumes when state collateral review concludes)
- Miller v. Marr, 141 F.3d 976 (10th Cir. 1998) (ignorance of law is not an excuse for AEDPA delay)
- Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000) (equitable tolling requires diligence and extraordinary circumstances)
- Burger v. Scott, 317 F.3d 1133 (10th Cir. 2003) (equitable tolling standards reaffirmed)
- Wade v. Battle, 379 F.3d 1254 (11th Cir. 2004) (state procedural rules determine when state collateral review is complete)
- Hendricks v. Howard, [citation="284 F. App'x 590"] (10th Cir. 2008) (mental illness generally insufficient for equitable tolling)
- Canady v. Bryant, [citation="779 F. App'x 528"] (10th Cir. 2019) (incapacity/ignorance ordinarily do not merit tolling)