Cosgray v. State of New Mexico

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_______________________________
DAVID W. COSGRAY,
Petitioner,
v. 	No. 25-cv-197-KWR-JFR
STATE OF NEW MEXICO,
Respondent.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on David W. Cosgray’s pro se Amended Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus, (Doc. 4) (Petition). 	Petitioner challenges his state
convictions for: possession of explosives or incendiary device; dangerous use of explosives;
aggravated stalking; and receipt, transportation, or possession of a firearm or destructive device.
Petitioner has also filed a Motion to Proceed in Forma Pauperis (Doc. 5) and Motion to Appoint
Counsel (Doc. 8). Having reviewed the matter sua sponte under Habeas Corpus Rule 4, the Court
will deny the Motion to Proceed in Forma Pauperis and Motion to Appoint Counsel, and will
require Petitioner to show cause why the Petition should not be dismissed without prejudice for
failure to exhaust state remedies.
BACKGROUND1
On June 26, 2024, Petitioner was convicted, pursuant to a guilty plea, of the offenses of:
three counts of possession of explosives or incendiary device; two counts of dangerous use of
1 The background facts are taken from the Petition and the state criminal docket cited in the
Petition, Case No. D-503-CR-2023-00340. The state criminal docket is subject to judicial notice.
Mitchell v. Dowling, 672 Fed. App’x 792, 794 (10th Cir. 2016) (Habeas courts may take “judicial
notice of the state-court docket sheet.”).
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explosives; aggravated stalking; and receipt, transportation, or possession of a firearm or
destructive device. 	See Judgment and Sentence, filed in Case No. D-503-CR-2023-00340.
Petitioner was sentenced to a term of thirteen years imprisonment. 	Id. 	On April 16, 2025,
Petitioner filed a state habeas petition in Case No. D-503-CR-2023-00340. On June 3, 2025, the
state court entered an Amended Judgment and Sentence, clarifying that Petitioner shall serve eight
years of his sentence in the custody of the New Mexico Department of Corrections, with the
remainder of his sentence suspended. See Amended Judgment and Sentence, filed in Case No. D-
503-CR-2023-00340. On June 4, 2025, Petitioner withdrew his state habeas petition. See Notice
of Withdrawal of Petition, filed in Case No. D-503-CR-2023-00340.
In his Petition, Petitioner challenges the Amended Judgment and Sentence and the
underlying plea agreement. See (Doc. 4).
DISCUSSION
Habeas Corpus Rule 4 requires sua sponte review of habeas petitions. Courts review each
claim under Habeas Corpus Rule 4 to determine whether the petitioner’s detention violates federal
law. 	See 28 U.S.C. § 2241(c)(3). 	Even if there is a potential violation, “a habeas petitioner is
generally required to exhaust state remedies” before obtaining relief “under § 2254.” Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000). 	“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). 	“The exhaustion requirement can only be excused in the
“absence of available State corrective process or because circumstances exist that render such
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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 and associated state dockets reflect that Petitioner did not present his federal
claims to the NMSC. Under each ground for relief, Petitioner checked “no” in response to many
of the questions regarding exhaustion. 	(Doc. 4) at 2-6. 	The New Mexico State Courts’
re:SearchNM website, which tracks all New Mexico trial court and appellate filings, confirms
Petitioner’s failure to exhaust. See https://researchnm.tylerhost.net/CourtRecordsSearch/, site last
visited April 30, 2026. 	The state criminal docket reflects that Petitioner has not initiated any
appellate proceeding before the NMSC regarding this case. See Docket Sheet in Case No. D-503-
CR-2023-00340.
For these reasons, the Court will require Petitioner to show cause why his § 2254 Petition
should not be dismissed without prejudice 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) (holding the factors set forth in Rhines v.
Weber, 544 U.S. 269 (2005) – which applies to mixed petitions – may also be 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 need not respond to this ruling. The
failure to timely respond and overcome the exhaustion requirement may result in dismissal of the
Petition without prejudice to refiling after the state exhaustion process is complete.
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MOTIONS TO PROCEED IN FORMA PAUPERIS AND TO APPOINT COUNSEL
Petitioner filed a document including a print-out of his inmate account statement, which
the Court construes as a motion to proceed in forma pauperis. (Doc. 5) (“IFP Motion”). The Court
may only grant such relief where an inmate’s “affidavit [and] … statement of … assets
[demonstrates] that the [inmate] is unable to pay such fees or give security therefor.” 28 U.S.C. §
1915(a)(1). Petitioner’s account statement reflects that he can afford to prepay the $5.00 habeas
filing fee, so the Court must deny the IFP Motion. See (Doc. 5) at 2-4. Petitioner shall pay the
$5.00 habeas filing fee within thirty (30) days of entry of this order.2 The failure to timely comply
with both directives, i.e., respond and overcome the exhaustion requirement and pay the filing fee,
may result in dismissal of the Petition without further notice.
Petitioner also filed a Motion to Appoint Counsel. 	(Doc. 8). 	There is no constitutional
right to counsel in a habeas proceeding. See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.
2008). Unless and until an evidentiary hearing is held, “[t]he decision to appoint counsel is left to
the sound discretion of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir.
2001). Factors guiding such discretion include “the merits of the litigant’s claims, the nature of
the factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity
of the legal issues raised by the claims.” Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
Considering these factors, the Court is not persuaded that habeas counsel should be appointed.
2 It appears Petitioner attempted to pay the filing fee by submitting a check for $25.00 on
September 29, 2025. The Clerk’s Office returned the check to Petitioner because it was not for
the correct amount. 	Petitioner must pay only the $5.00 habeas filing fee for this case – any
additional amounts for other cases will not be accepted if combined with the fee for this case.
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The Petition appears to raise cogent § 2254 claims and it appears Petitioner is capable of
prosecuting this action. The Motion to Appoint Counsel (Doc. 8) will therefore be denied without
prejudice.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Proceed in Forma Pauperis
(Doc. 5) is DENIED and within thirty (30) days from entry of this Order, Petitioner shall submit
the $5.00 habeas filing fee;
IT IS FURTHER ORDERED that within thirty (30) of entry of this Order, Petitioner must
show cause in writing why his Amended 28 U.S.C. § 2254 Petition (Doc. 4) should not be
dismissed without prejudice for failure to exhaust state remedies.
IT IS FINALLY ORDERED that Petitioner’s Motion to Appoint Counsel (Doc. 8) is
DENIED without prejudice.
___/S/____________________________
HON. KEA RIGGS
UNITED STATES DISTRICT JUDGE
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