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

 2 CITY OF ROSWELL,

 3          Plaintiff-Appellee,

 4 v.                                                                    NO. A-1-CA-35914
 5
 6 EDWARD KAFKA,

 7          Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF CHAVEZ COUNTY
 9 James M. Hudson, District Judge

10 City of Roswell
11 Paul V. Sanchez
12 El Prado, NM

13 for Appellee

14 Edward Kafka
15 Roswell, NM

16 Pro se Appellant

17                                 MEMORANDUM OPINION

18 GARCIA, Judge.

19   {1}    Defendant appeals his convictions for failure to yield and failure to provide

20 immediate notice of an accident. We issued a notice of proposed disposition proposing
 1 to dismiss in part and affirm in part. After obtaining several extensions of time from

 2 this Court, Defendant has responded with a memorandum in opposition. We have

 3 carefully considered the arguments raised in that memorandum, but continue to

 4 believe that the proposed disposition is correct. Therefore, for the reasons set out

 5 below and in our notice of proposed summary disposition, we dismiss in part and

 6 affirm in part.

 7   {2}   In our notice, we pointed out that Defendant had not filed a timely appeal from

 8 the judgment and sentence and that his appeal would be limited to the denial of his

 9 “omnibus” motion for reconsideration, which we construed as a motion filed under

10 Rule 5-803 NMRA. Defendant has not responded to the proposal to dismiss the appeal

11 insofar as it concerns the judgment and sentence, and we therefore dismiss that portion

12 of his appeal.

13   {3}   With respect to the proposal to affirm the district court’s rejection of

14 Defendant’s motion for reconsideration, Defendant presents evidence and argument

15 intended to establish that his convictions were not supported by substantial evidence.

16 In particular, he points out that the only witness who was on the scene at the time of

17 the accident testified that he did not actually see the accident happen. [MIO 4-5]

18 Instead, the witness testified that he saw the positions of the vehicles after the accident

19 and heard the other driver yelling that Defendant had run the stop sign; this statement

                                                2
 1 was apparently admitted into evidence as an exception to the hearsay rule, the “excited

 2 utterance” exception. [Id.] In addition, Defendant maintains there was no evidence that

 3 the amount of damage to either vehicle was “to the apparent extent of $500 or more”

 4 as the city ordinance apparently requires. [Id. 3, 5-6]

 5   {4}   The problem with both of Defendant’s arguments is that they attack the

 6 sufficiency of the evidence supporting his convictions. However, in New Mexico and

 7 elsewhere, a claimed lack of sufficient evidence is not an argument cognizable in a

 8 post-conviction proceeding. See, e.g., Faulkner v. State, 1972-NMCA-061, ¶ 6, 83

 9 N.M. 742, 497 P.2d 744; State v. Bonney, 1971-NMCA-041, ¶ 4, 82 N.M. 508, 484

10 P.2d 350; accord Clay v. Kelley, 528 S.W.3d 836, 838 (“Claims of actual innocence,

11 which are effectively challenges to the sufficiency of the evidence, are due-process

12 claims that are not cognizable in habeas proceedings.”); In re Richards, 371 P.3d 195,

13 209 (Cal. 2016) (noting that a sufficiency-of-the-evidence claim is a type of claim not

14 cognizable on a petition for writ of habeas corpus). A motion filed under Rule 5-803,

15 or construed as filed under that rule, is unequivocally a motion requesting post-

16 conviction relief. Rule 5-803(A) (describing such a motion as a “petition to set aside

17 a judgment and sentence”). Therefore, the sufficiency-of-the-evidence arguments

18 being raised by Defendant were simply not cognizable by the district court or by this

19 Court on appeal. We therefore decline to address the arguments Defendant has raised

                                              3
1 concerning the sufficiency of the evidence supporting his convictions.

2   {5}   Based on the foregoing, as well as the discussion contained in the notice of

3 proposed summary disposition, we affirm Defendant’s convictions.

4   {6}   IT IS SO ORDERED.


5                                        __________________________________
6                                        TIMOTHY L. GARCIA, Judge


7 WE CONCUR:



8 _________________________________
9 LINDA M. VANZI, Chief Judge



10 _________________________________
11 STEPHEN G. FRENCH, Judge




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