Black v. Ryan

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:

         Petitioner Arthur Black filed an amended pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.)

         I. Summary of Conclusion.

         Petitioner raises two grounds for relief in his Petition. Petitioner's state proceedings were final on October 10, 2016 and this Petition was due one year later. But Petitioner did not file a habeas petition until October 22, 2018. Petitioner's claims are untimely by more than one year. Petitioner was able to research and file numerous pleadings in the state courts, so he is not entitled to equitable tolling. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         a. Preceding Crimes and Plea Proceedings.

         The Respondents offered the following facts, which are uncontested by Petitioner:

This case stems from three separate prosecutions that culminated in a single probation violation. In CR2007-116233-001 (“2007 Case”), the State charged Black via indictment on February 21, 2008 with two counts of aggravated DUI. The presentence report states the circumstances of the crime:

On March 11, 2007, at approximately 1:13 a.m., Arthur Black was asleep in the driver's seat of his vehicle, while in the drive-through lane of a fast-food restaurant. The defendant, who told police that he was too intoxicated to perform Field Sobriety Tests, exhibited signs and symptoms of driving under the influence of alcohol. His New Mexico driver license was suspended, and he registered .181 and . 182 on breathalyzer tests.

Black agreed to plead guilty to one count of aggravated DUI, in exchange for up to 10 years of probation, including a 4-month prison term, that ran concurrently to the sentence in the 2008 case. The trial court accepted the plea.

In CR2008-007161-001 (“2008 Case”), the State charged Black via information on July 2, 2008 with one count of aggravated DUI. The presentence report describes the circumstances of this crime:

On February 13, 2008, at approximately 1:30 a.m., police conducted a traffic stop on the vehicle the defendant was driving after he made an improper turn. He exhibited signs and symptoms of driving under the influence of alcohol. Mr. Black refused to perform Field Sobriety Tests. Police obtained a warrant, and a phlebotomist drew his blood at 2:51 in the early morning. The results indicated a .244 percent blood alcohol concentration. [] The defendant had two outstanding warrants, including one for aggravated driving under the influence.

Black again agreed to plead guilty in exchange for up to 10 years' probation with a 4-month prison term served concurrently with the sentence in the 2007 case. The trial court accepted this plea as well. The trial court suspended sentences in both the 2007 and 2008 cases and imposed concurrent penalties of five years' probation and four months in prison.

In CR2011-146197-001 (“2011 Case”), the State charged Black via indictment on October 17, 2011 with aggravated assault, assault, and three counts of disorderly conduct. According to Black's sentencing memorandum, he became involved in a drunken argument with his girlfriend and her adult daughter when they refused to give him the keys to their vehicle, supposedly so he could silence the car alarm. The daughter reported that Black brandished a knife, made threats, and shoved her. The women called 9-1-1, and by then, Black dropped the knife.

Black agreed to plead guilty to aggravated assault and one count of disorderly conduct in exchange for a prison sentence ranging from 0.5-2 years for the disorderly conduct offense followed by probation for the aggravated assault conviction. The trial court accepted the plea. The court sentenced Black to 1 year imprisonment on the disorderly conduct count followed by 3 years' probation on the ...