Castaneda v. Santistevan ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CLAUDIO R. CASTANEDA, Petitioner, v. No. 21-cv-474 WJ-KRS DWAYNE SANTISTEVAN and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents. ORDER PERMITTING SUPPLEMENTAL RESPONSE This matter is before the Court on Petitioner’s show-cause response addressing the timeliness of his 28 U.S.C. § 2254 claims. In the response, Petitioner generally alleges he could not file a petition within the one-year limitation based on property transfers, lost paperwork, and illness. See Doc. 4 at 3. The Court discerns he seeks equitable tolling based on these circumstances. Petitioner alleges he could supply records but would need more time. While records may not be necessary at this stage, the allegations must show Petitioner “diligently pursue[d] his claims and … that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Petitioner must provide “specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal” petition. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). The Court will allow Petitioner to file an optional supplement on equitable tolling within thirty (30) days of entry of this Order. If Petitioner declines to timely comply, the Court will rely on the original show-cause response (Doc. 4). IT IS ORDERED that Petitioner may file a supplemental response addressing equitable tolling within thirty (30) days of entry of this Order. UNITED STATES MAGISTRATE JUDGE