Doporto v. Attorney General of the State of New Mexico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_______________________
GARY DOPORTO,
Petitioner,
v. 	No. 25-cv-0766-KWR-KBM
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO, et al,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Gary Doporto’s Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2254 (Doc. 1) (Petition). Petitioner challenges a 2021 state revocation order as well
as the calculation of his state sentence. 	Having reviewed the matter sua sponte under Habeas
Corpus Rule 4, the Court will require Petitioner to show cause why the Petition should not be
summarily dismissed for failure to exhaust state remedies.
BACKGROUND
The following background facts are taken from the Petition and the state criminal docket
cited in the Petition, Case No. D-503-CR-2014-284. The state criminal docket is subject to judicial
notice. See Mitchell v. Dowling, 672 Fed. App’x 792, 794 (10th Cir. 2016) (Habeas courts may
take “judicial notice of the state-court docket sheet”).
In 	2015, 	Petitioner 	pled 	guilty 	to 	trafficking 	a 	controlled 	substance 	(narcotics 	or
methamphetamine). 	See Doc. 1 at 17. 	The State Trial Court sentenced him nine years
imprisonment, with six and a half years suspended. Id. (attaching judgment in Case No. D-503-
CR-2014-284). 	The sentence includes a habitual offender enhancement and a five-year term of
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probation. 	Id. 	After Petitioner’s initial term of incarceration, he was arrested several times for
probation violations. Id. at 19, 25 (attaching revocation orders in Case No. D-503-CR-2014-284).
The State Trial Court revoked his probation in 2018 and again in 2021. 	Id. 	Petitioner did not
appeal the criminal judgment or any revocation order in Case No. D-503-CR-2014-284. Id. at 2;
see also Docket Sheet in D-503-CR-2014-284. He is still serving a state sentence pursuant to the
most recent Order Revoking Probation, which was entered on December 20, 2021. See Doc. 1 at
25.
Petitioner filed the instant Petition on August 11, 2025. See Doc. 1. He argues the 2021
revocation order imposed an excessive sentence, in light of the original judgment. Id. at 5. This
argument is properly raised under § 2254, which governs challenges to state convictions/sentences.
See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). Petitioner also argues
prison officials miscalculated his sentence and failed to award earned credits. See Doc. 1 at 15-16.
This argument is properly construed under 28 U.S.C. § 2241. Yellowbear v. Wyoming Att’y Gen.,
525 F.3d 921, 924 (10th Cir. 2008) (“Section § 2241 is a vehicle ... for attacking the execution of
a sentence.”). Because none of the claims are exhausted, as set forth below, the Court will address
that threshold issue before determining whether Petitioner can seek different types of habeas relief
in one proceeding.
Petitioner filed a Motion to Proceed In Forma Pauperis (Doc. 2) after submitting the
Petition, which reflects he cannot afford to prepay the $5.00 habeas filing fee. 	The Court will
therefore grant the Motion and screen the Petition under Habeas Corpus Rule 4.
DISCUSSION
Habeas Corpus Rule 4 requires a sua sponte review of habeas petitions. Courts review each
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claim to determine whether the petitioner’s detention violates federal law. 	See 28 U.S.C. §
2241(c)(3). “If it plainly appears from the petition and any attached exhibits that the moving party
is not entitled to relief in the district court, the judge must dismiss the petition.” Habeas Corpus
Rule 4(b). “If the petition is not dismissed, the judge must order … an answer.” Id.
“[A] habeas petitioner is generally required to exhaust state remedies” before obtaining
relief. 	Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). 	This requirement applies
regardless of “whether [the petitioner’s] action is brought under § 2241 or § 2254.” 	Id. 	“The
exhaustion requirement is satisfied if the federal issue has been properly presented to the highest
state court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kansas
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). In New Mexico, this means the petitioner
must present all claims to the New Mexico Supreme Court (NMSC) through a direct appeal or a
state habeas petition. “The exhaustion requirement can only be excused in the “absence of available
State corrective process or because circumstances exist that render such process ineffective to
protect the rights of the applicant.” Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007). “Sua
sponte consideration of exhaustion of state remedies ... is explicitly permitted” where the failure to
exhaust appears on the face of the petition. United States v. Mitchell, 518 F.3d 740, 746 n.8 (10th
Cir. 2008).
The Petition here clearly reflects that Petitioner did not present his federal claims to the
NMSC. 	The Petition states Petitioner did not appeal the criminal Judgment, seek review by the
highest state court, or file any state habeas petitions. See Doc. 1 at 2-5. 	Under each ground for
relief, he also checked “no” in response to the questions regarding exhaustion. 	Id. at 5-6. 	The
Secured Odyssey Public Access (SOPA) system, which tracks all New Mexico trial court and
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appellate filings, confirms the failure to exhaust. See https://securecourtcaseaccess.nmcourts.gov/.
The SOPA system reflects that Petitioner has not filed any appeal with the NMSC.
For these reasons, the Court will require Petitioner to show cause in writing why his Petition
should not be summarily dismissed for failing to exhaust state remedies. If Petitioner seeks to stay
the proceeding, he must show “good cause for his failure to exhaust, [that] his unexhausted claims
are potentially meritorious, and” the absence of “intentionally dilatory litigation tactics.” Doe v.
Jones, 762 F.3d 1174, 1181 (10th Cir. 2014) (the factors set forth in Rhines v. Weber, 544 U.S. 269
(2005) – which applies to mixed petitions – are also relevant where there is a total failure to
exhaust). 	The show-cause response is due within thirty (30) days of entry of this ruling. 	If
Petitioner concedes the failure to exhaust, he does not need to respond to this ruling, and he can
instead pursue relief by filing a state habeas petition. 	The failure to respond and overcome the
exhaustion requirement will result in dismissal of this case without prejudice to refiling after the
state process is complete.
IT IS ORDERED that Petitioner’s Motion to Proceed In Forma Pauperis (Doc. 2) is
GRANTED; and within thirty (30) days of entry of this ruling, Petitioner must file a response
showing cause, if any, why his Petition should not be dismissed for failure to exhaust state remedies.
SO ORDERED.
_____/S/_______________________________
HON. KEA RIGGS
UNITED STATES DISTRICT JUDGE
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