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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 35,052

 5 MICHAEL STEPHEN KEATON,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
 8 Karen L. Parsons, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   Defendant Michael Keaton appealed as a self-represented litigant from the

 2 district court’s order denying his motion to reconsider the sentence. [3 RP 523] This

 3 Court’s second calendar notice proposed to reverse and remand to the district court

 4 for an evidentiary hearing on certain issues outlined therein. [CN 7] The State filed

 5 a “Notice of Non-Filing a Memorandum in Opposition.” [Ct. App. File, top document]

 6 The State agrees with this Court’s determination that the conclusive presumption of

 7 ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105

 8 N.M. 231, 731 P.2d 374, does not apply in this context. [MIO 2] However, due to the

 9 unique circumstances of this case, the State does not oppose remand to the district

10 court for consideration of the issues identified in this Court’s second calendar notice.

11 [Id.]

12   {2}   For these reasons and those stated in this Court’s second calendar notice, we

13 reverse and remand to the district court.

14   {3}   IT IS SO ORDERED.



15                                          __________________________________
16                                          JONATHAN B. SUTIN, Judge


17 WE CONCUR:


18 _______________________________

                                               2
1 LINDA M. VANZI, Chief Judge


2 _______________________________
3 J. MILES HANISEE, Judge




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