ORDER SETTING AN EVIDENTIARY HEARING AND APPOINTING COUNSEL FOR PETITIONER

STEVEN C. YARBROUGH, Magistrate Judge.

THIS MATTER is before the Court on pro se Petitioner James Wilson's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody Or Fed. R. Civ. P. 60(B)(1)(4)(5)(6) (hereinafter referred to as "§ 2254 petition"), filed on September 6, 2017. [Doc. 1] Respondent David Jablonski filed a response to Petitioner's § 2254 petition on February 12, 2018 and Petitioner filed a reply on February 21, 2018. [Docs. 23, 24] This matter has been referred to the undersigned judge "to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case." [Doc. 22] After careful consideration of the pertinent law and all of the pleadings submitted by the parties, including attachments, exhibits and portions of the underlying criminal record, the Court concludes that an evidentiary hearing should be scheduled in this matter and counsel should be appointed to represent Petitioner pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases In The United States District Courts.

I. BACKGROUND

This case has a lengthy and complex procedural history, which will be set forth herein only to the extent necessary to resolve the issues presented in Petitioner's § 2254 petition. Petitioner was convicted in 2011 in the Fifth Judicial District of the State of New Mexico in the following criminal cases and the following sentences were imposed:

Petitioner's probation in each of the foregoing cases was set to expire on the following dates: (1) Case No. D-506-CR-201000213—December 12, 2012 [Doc. 23-1 at 4, Ex. B]; (2) D-506-CR-201100271—September 8, 2017 [Doc. 23-1 at 64, Ex. M]; (3) D-506-CR-201100272— December 4, 2018 [Doc. 23-2 at 17, Ex. X]; and (4) D-506-CR-201100324—March 6, 2014. [Doc. 23-2 at 65, Ex. GG]

In 2013, Petitioner's probation was revoked in all four cases, resulting in amended judgments and sentences as follows:

On September 23, 2015, Corrected Orders Revoking Probation and Imposing Judgment and Sentence were filed in case numbers D-506-CR-201100271 and D-506-CR-201100324. [See Doc. 23-1 at 85-89, Ex. Q and Doc. 23-2 at 88-90, Ex. KK] The corrected order in case number D-506-CR-201100271 required Defendant to serve his full sentence1 (rather than suspending all but two days of his sentence) and provided that "[t]he sentence imposed in this case shall be served consecutively to the sentence imposed in Cause No. D-506-CR-201000213." [Doc. 23-1 at 87] The corrected order further provided for certain counts to be served concurrently with or consecutively to other counts in the case.2 The corrected order in D-506-CR-201100324 specified that Counts 1 and 2 are to "be served consecutively" and provided that "[t]he sentence imposed in this case shall be served consecutively to the sentence imposed in Cause No. D-506-CR-201100272." [Doc. 23-2 at 89]

On April 27, 2016, the 2013 Order Revoking Probation and Imposing Judgment and Sentence in case number D-506-CR-2010-213 was declared void because Petitioner's "probation expired prior to the entry of the Order revoking same." [Doc. 23-1 at 34, Ex. G] Soon thereafter, on May 20, 2016, the Court entered amended orders in Petitioner's three other criminal cases, which were the same as the prior orders, with the following exceptions:

On June 13, 2016, Petitioner filed a Notice of Appeal in the New Mexico Court of Appeals, challenging the May 20, 2016 Orders in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324. [Doc. 23-1 at 94, Ex. S; Doc. 23-2, Ex. BB; Doc. 23-2 at 95, Ex. MM] The New Mexico Court of Appeals observed that Petitioner's claims that "his presentence confinement credit has been erroneously calculated, that he had finished serving his sentence in each of the above cases prior to the revocation of his probation, and that the district court therefore lost jurisdiction to revoke his probation and Defendant should accordingly be immediately released from confinement . . . are either express petitions for writs of habeas corpus filed pursuant to Rule 5-802 NMRA, or should be construed as such." [Doc. 23-2 at 116, Ex. PP] Because the New Mexico Court of Appeals "does not have subject matter jurisdiction to hear appeals from district court orders denying habeas-corpus petitions," the Court of Appeals transferred "the entire file to the Supreme Court." [Id.] The New Mexico Supreme Court accepted the transfer and treated Petitioner's docketing statements "as a consolidated petition for a writ of certiorari under Rule 12-501." [Doc. 23-2 at 117-18, Ex. QQ]

While Petitioner's consolidated petition for writ of certiorari was pending in the New Mexico Supreme Court, Petitioner filed an Application For Emergency Temporary Restraining Order in the First Judicial District Court of the State of New Mexico, requesting immediate release from custody because the New Mexico Department of Corrections allegedly was detaining Petitioner illegally "by orders that were filed in contravention to the New Mexico Constitution, Article II, §§ 15 and 18 and NMSA 1978, § 30-1-10." [Doc. 23-4 at 14-15, Ex. VV] Petitioner also filed a tort complaint in the First Judicial District Court of the State of New Mexico, alleging that his "cases were all fully served" and the May 20, 2016 orders violate Petitioner's right "against being punished from the same crime twice." [Doc. 23-4 at 17-23, Ex. XX] Lastly, Petitioner filed an "Emergency Petition for Writ of Prohibition" in the New Mexico Supreme Court, challenging the May 20, 2016 Orders in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324 because: (1) "the trial court's jurisdiction already was at an end"; (2) his sentences "had been fully served and the court's jurisdiction was at an end"; (3) the trial court's orders were "outside the jurisdiction of NMRA Rule 5-802"; and (4) Petitioner's sentences "had been fully served and expired, prior to the revocation" of his probation and, as such, the trial "court's jurisdiction was at an end." [Doc. 23-3 at 6-7]

In light of Petitioner's numerous pro se filings, the State of New Mexico moved the New Mexico Supreme Court "to enter an order prohibiting Petitioner from filing any further pro se pleadings attacking his presentence confinement credit, his probation revocation, and the amended judgments and sentences in his three underlying district court cases." [Ex. 23-4 at 1, Ex. SS] Additionally, in response to Petitioner's consolidated petition for writ of certiorari in the New Mexico Supreme Court, the State of New Mexico stated that Petitioner's "claims and times overlap and are not easily untangled in the present pleadings." [Doc. 23-4 at 8, Ex. TT] Rather than attempting to untangle Petitioner's claims or address them on the merits, the State of New Mexico argued "that the appropriate course of action" was to "allow the First Judicial District Court to evaluate and dispose of" Petitioner's Application For Emergency Temporary Restraining Order and tort complaint, "to enter an order prohibiting Petitioner from any future filings on the issue, and to hold the current petition for writ of certiorari in abeyance or to dismiss it as premature." [Doc. 23-4 at 10, Ex. TT] On November 13, 2017, the New Mexico Supreme Court summarily denied Petitioner's petition for writ of certiorari and petition for writ of prohibition and granted the State of New Mexico's "motion to prohibit petitioner from any further pro se filings in any New Mexico court on the issue of his probation revocation and presentence confinement credit." [Doc. 23-4 at 12-13, Ex. UU]

On September 6, 2017, Petitioner filed the present § 2254 petition, which challenges the May 20, 2016 orders revoking his probation and imposing judgment in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324. [Doc. 1] Petitioner's § 2254 petition raises the following questions for the Court's review:

[Doc. 1 at 8] Attached to Petitioner's § 2254 petition are numerous filings in his underlying criminal cases, good time figuring sheets, quarterly good time sheets, and a memorandum dated September 30, 2015 from Lia Archuleta, Records Manager for Offender Management Services of the New Mexico Department of Corrections. [Doc. 1-1 at 100, Ex. FF] Ms. Archuleta's memorandum provides as follows:

[Id.]

Respondent timely filed an answer to Petitioner's § 2254 petition after the Court denied his motion to hold the case in abeyance or, alternatively, to dismiss it without prejudice for failure to exhaust state remedies.5 [Doc. 23] Respondent "does not dispute that [Petitioner] has exhausted available state court remedies as to all five questions presented" in his § 2254 petition. [Doc. 23 at 8] Nonetheless, Respondent asks the Court to dismiss Petitioner's § 2254 petition with prejudice because four of Petitioner's claims challenge "the manner in which presentence credit is applied" and rely "solely on state-law rules and statutes" and such claims "are not cognizable in a federal habeas proceeding." [Doc. 23 at 13-14] Respondent concedes that Petitioner's remaining claim, which alleges that Petitioner had fully served each of his sentences prior to the May 20, 2016 orders revoking probation and imposing sentence, properly is pursued in this federal habeas proceeding because it "raises a double-jeopardy claim inasmuch as Mr. Wilson contends that he is now being made to re-serve terms of imprisonment he already has discharged." [Doc. 23 at 14] Nonetheless, Respondent asks the Court to dismiss Petitioner's double-jeopardy claim with prejudice because Petitioner did not have a legitimate expectation of finality in his three sentences, since those sentences were not yet fully served when their corresponding judgments were modified. [Doc. 23 at 20] In support of this contention, Respondent relies on an e-mail dated February 8, 2018 from Sandra A. Moya, Records Manager Specialists for Offender Management Services, which states that "the original memo that was sent to you regarding [Petitioner's] discharge date by Lia Archuleta" should be disregarded, because it was "sent prior to receiving the corrected judgments." [Doc. 23-4 at 65, Ex. ZZ] According to Ms. Moya's e-mail, Petitioner's discharge dates, in light of the corrected judgments, are as follows:

[Id. at 65-55] Alternatively, if the Court concludes that the issues raised in Petitioner's § 2254 petition cannot be resolved on the record, Respondent "requests the Court to appoint counsel to represent Mr. Wilson during an evidentiary hearing to settle the matters of Mr. Wilson's probation revocation and presentence confinement credits as they bear on his argument that he is confined in violation of his right to be free from double jeopardy." [Doc. 23 at 21]

In his reply brief filed on February 21, 2018, Petitioner contends that he had a legitimate expectation in the finality of his sentences because he had completed the service of his sentences prior to the entry of the May 20, 2016 orders. [Doc. 24] In support of this contention, Petitioner relies on his good-time configuring sheets as well as the September 30, 2015 memorandum from Ms. Archuleta. [Doc. 24]

II. DISCUSSION Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), "the appropriate standard of review for a particular claim hinges on the treatment of that claim by the state courts." McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir. 2001). If the state court did not decide the claim on the merits and the claim "is not procedurally barred, the district court then decides the issue in the first instance." Fairchild v. Trammell, 784 F.3d 702, 712 (10th Cir. 2015); see also Stouffer v. Duckworth, 825 F.3d 1167, 1179 (10th Cir. 2016) ("[I]f the state court did not decide the claim on the merits, the stringent principles of deference under 28 U.S.C. § 2254 are inapplicable.") (quotation marks omitted)), cert. denied, ___ U.S. ____, 137 S.Ct. 1226 (2017). "If a claim was adjudicated on its merits by the state courts," however, "the petitioner will be entitled to federal habeas relief only if he can establish that the state court decision `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' 28 U.S.C. § 2254(d)(1), or `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' § 2254(d)(2)." McCracken, 268 F.3d at 975.

A state court's decision is "on the merits" even when it denies a petitioner's claim "without an accompanying statement of reasons." Harrington v. Richter, 562 U.S. 86, 92 (2011). Indeed, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. "The presumption may be overcome," however, "when there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100.

In the present case, the New Mexico Supreme Court did not provide an accompanying statement of reasons for the denial of Petitioner's consolidated petition for writ of certiorari under Rule 12-501 NMRA. [See Doc. 23-4 at 12-13, Ex. UU] Nonetheless, the Court must presume that the New Mexico Supreme Court adjudicated Petitioner's claims on the merits "unless there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100. After reviewing the state court record provided by Respondent, the Court concludes that the most likely explanation for the New Mexico Supreme Court's summary denial of Petitioner's claims is because it followed the State of New Mexico's recommendation for "the appropriate course of action," which was "to allow the First Judicial District Court to evaluate and dispose of the current pleadings, to enter an order prohibiting any future filings on the issue, and to hold the current petition for writ of certiorari in abeyance or to dismiss it as premature." [Doc. 23-4 at 10] Indeed, the Court notes that the New Mexico Supreme Court not only dismissed Petitioner's claims, but also prohibited Petitioner "from any further pro se filings in any New Mexico court on the issue of his probation revocation and presentence confinement credit" as explicitly requested by the State of New Mexico. [Id. at 13] Therefore, the Court concludes that the presumption of an adjudication on the merits has been rebutted and will review Petitioner's § 2254 claims de novo.

Petitioner's main contention is that the May 20, 2016 orders revoking his probation and imposing judgment in case numbers D-506-CR-201100271, D-506-CR-201100272, and D-506-CR-201100324 were entered after he had completed the service of his sentences, in violation of his right to be free from double jeopardy. In Warnick v. Booher, 425 F.3d 842 (10th Cir. 2005), the United States Court of Appeals for the Tenth Circuit considered whether a reduction in Mr. Warnick's good-time credits after the completion of his "six-year sentence violated double-jeopardy principles because it took place after he had fully served [his] sentence." Id. at 846. The Circuit Court noted that the double jeopardy clause of the United States Constitution, which is applicable to the states through the Fourteenth Amendment, "imposes limits on sentence adjustments" even when those adjustments comply with the state's sentencing statutes. Id. at 847. "[O]ne necessary condition for a violation of the clause on this ground" is that the "adjustment violate a legitimate expectation of the defendant in the finality of his sentence." Id. at 848. In determining whether a petitioner had a legitimate expectation of finality in his sentence, the district court must examine two issues: (1) whether state law, (i.e., "constitution, statutes, regulations, and case law") forbids the sentencing adjustment; and (2) "if not whether there has been an event," such as an acquittal, that gave the petitioner a "legitimate expectation of finality as a matter of federal constitutional law, state law to the contrary notwithstanding." Id.

As to the second issue, the Circuit Court noted "that that the federal constitution apparently creates only modest legitimate expectations (aside from the expectation of finality in an acquittal)." Id. For example, "the pronouncement of sentence in itself does not give a prisoner a legitimate expectation of finality." Id. Indeed, the Circuit Court recognized that it had:

Id. The Circuit Court left "it to the district court in the first instance to resolve the issue" and remanded Mr. Warnick's case to the district court. Id. at 899.

Respondent concedes that, "[a]rguably, on May 20, 2016 Mr. Wilson was positioned to have a legitimate expectation of finality in the one sentence—D-506-CR-201000213—that he had fully discharged as of that date." [Doc. 23 at 20] Respondent contends, however, that Petitioner could not "possibly have had a legitimate expectation of finality" in his other three sentences because they "were not yet served when their corresponding judgments were modified." [Doc. 23 at 20 (expectation in original)] This contention, however, is not supported by the state court record. According to Ms. Lia Archuleta's September 30, 2015 memorandum, Petitioner had completed the service of his sentence on D-506-CR-201100324 "as of April 12, 2015" and had completed the service of his sentence on D-506-CR-201100272 "prior to being received at NMCD." [Doc. 1-1 at 100] Additionally, Petitioner was scheduled to complete the service of his sentence in D-506-CR-201100271 on May 18, 2016, assuming that he received all of his good time credit. [Id.] Nothing in Ms. Moya's February 8, 2018 e-mail contradicts Ms. Archuleta's memorandum. Instead, Ms. Moya instructs that Ms. Archuleta's memorandum should be "disregard[ed]" because it was sent "prior to receiving the corrected judgments" on May 20, 2016. [Doc. 23-4 at 65] Thus, it appears from the state court record that Petitioner had completed the service of at least two of his sentences, and perhaps even three, prior to the entry of the challenged May 20, 2016 orders.

The Court finds that Petitioner diligently pursued his claims in state court and that he has made a prima facie showing that the May 20, 2016 orders implicated his right to be free from double jeopardy.6 Because there is a factual dispute between the parties regarding the precise date on which Petitioner completed serving each of his three sentences, an evidentiary hearing is required. See Hanson v. Sherrod, 797 F.3d 810, 836 (10th Cir. 2015) ("A habeas petitioner can obtain an evidentiary hearing in federal court by (1) showing he was diligent in developing the factual basis for his claim in state court . . .; and (2) asserting a factual basis that, if true, would entitle him to habeas relief. . . . If the petitioner has exercised diligence in developing the factual basis for his claim, his request for an evidentiary hearing may be assessed under less-rigorous pre-AEDPA standards." (internal quotation marks and citations omitted)). Therefore, the court will grant Respondent's request to schedule "an evidentiary hearing to settle the matters of Mr. Wilson's probation revocation and presentence confinement credits as they bear on his argument that he is confined in violation of his right to be free from double jeopardy." [Doc. 23 at 21]

Rule 8(c) of the Rules Governing Section 2254 Cases In The United States District Courts provides that, "[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A" and "must conduct the hearing as soon as practicable after giving the attorneys adequate time to investigate and prepare." Rule 8(c). Therefore, in accordance with Rule 8(c), the Court will appoint counsel to represent Petitioner.

III. CONCLUSION

IT IS THEREFORE ORDERED that an evidentiary hearing be scheduled by separate order on Petitioner's § 2254 petition;

IT IS FURTHER ORDERED that an attorney from the CJA panel be appointed to represent Petitioner in this habeas proceeding.

IT IS SO ORDERED.