State v. Chand

• Court: New Mexico Court of Appeals
• Decided: August 13, 2012
• Docket: 31,770
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 NARENDRA CHAND,

3 Defendant-Appellant,

4 vs. NO. 31,770

5 STATE OF NEW MEXICO, and 6 ERASMO BRAVO, WARDEN,

7 Plaintiff-Appellee.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Samuel L. Winder, District Judge

10 Narendra Chand 11 Rio Rancho, NM

12 Pro se Appellant

13 Gary K. King, Attorney General 14 Santa Fe, NM

15 for Appellee

16 MEMORANDUM OPINION

17 GARCIA, Judge. 1 Defendant appeals the district court’s denial of his motion for relief from

2 judicial bias and his motion for release of 911 tapes. We issued a second notice of

3 proposed summary disposition proposing to affirm. Defendant has responded with

4 a timely memorandum in opposition. We affirm.

5 In our notice of proposed disposition we noted that it was unclear under what

6 procedural mechanism Defendant attempted to bring his motion for production of the

7 911 tapes, but that the motion appeared to argue that the 911 tapes were evidence of

8 his innocence. We proposed to affirm on the rationale that a motion for new trial

9 based on newly discovered evidence must be made within two years of entry of final

10 judgment, and Defendant’s motion was filed more than seven years after final

11 judgment. See Rule 5-614(C) NMRA. We also proposed to hold that Defendant’s

12 motion was improper as a motion brought under Rule 1-060(B)(2) NMRA seeking

13 relief from judgment on the basis of newly discovered evidence, which much be

14 brought not more than one year after the judgment. See Rule 1-060(B)(6) NMRA.

15 With respect to Defendant’s motion for relief from judicial bias, we proposed

16 to hold that, although Defendant stated in his motion and on appeal that the motion

17 was raised pursuant to Rule 1-060(B)(4) NMRA (governing relief from a void

18 judgment), the motion was actually directed at the district court’s April 28, 2011,

19 order denying his Rule 5-802 NMRA petition for habeas relief and for an evidentiary

2 1 hearing. We noted that this Court does not have jurisdiction to review a district

2 court’s denial of a Rule 5-802 petition. See Rule 12-501(B) NMRA (stating that

3 appeals from the district court’s denial of a petition for writ of habeas corpus should

4 be filed in the Supreme Court); see also Martinez v. State, 110 N.M. 357, 358, 796

5 P.2d 250, 251 (Ct. App. 1990) (stating that the Court of Appeals does not have

6 jurisdiction to review the district court’s denial of a Rule 5-802 petition).

7 In his memorandum in opposition, Defendant does not oppose our proposed

8 disposition on the merits. We therefore affirm for the reasons stated in the notice.

9 Defendant asks that we construe his motions as habeas petitions and transfer this case

10 to the Supreme Court. We decline to do so. Neither of Defendant’s motions was

11 raised as a habeas petition in conformity with Rule 5-802. We therefore cannot

12 construe the motions as habeas petitions. As we stated in our second notice of

13 proposed summary disposition, Defendant’s challenges to the judgment must be

14 pursued under Rule 5-802 (governing habeas relief).

15 For these reasons, we affirm the district court.

16 IT IS SO ORDERED.

17 18 TIMOTHY L. GARCIA, Judge

3 1 WE CONCUR:

2 3 MICHAEL D. BUSTAMANTE, Judge

4 5 JONATHAN B. SUTIN, Judge