Bodolla v. Hornbeak

Filing 4

ORDER: The clerk shall serve by certified mail a copy of this order, the petition, and all attachments upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall send a copy of this order t o petitioner. Respondent must file and serve a motion to dismiss no later than 4/4/08. If petitioner wishes to oppose motion to dismiss, she must do so by filing an opposition with the court and serving a copy upon respondent no later than 5/9/08. Respondent must file and serve her reply, if any, no later than 5/30/08. Denying 3 petitioenr's in forma pauperis application. She must pay the $5.00 filing fee no later than 3/14/08. Signed by Judge Susan Illston. (SI, COURT STAFF) (Filed on 2/4/2008) (Additional attachment(s) added on 2/7/2008: # 1 Certificte of Service) (ys, COURT STAFF).

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Bodolla v. Hornbeak Doc. 4 Case 3:08-cv-00172-SI Document 4 Filed 02/04/2008 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ADRIANA BEDOLLA, Petitioner, v. TINA HORNBEAK, warden, Respondent. / No. C 08-172 SI (pr) ORDER INTRODUCTION Adriana Bedolla, a prisoner incarcerated at the Valley State Prison for Women, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Her petition is now before the court for review pursuant to 28 U.S.C. 2243 and Rule 4 of the Rules Governing Section 2254 Cases. BACKGROUND Bedolla's petition states that she was convicted in 2001 in San Benito County Superior Court of assault on a child under the age of eight and was sentenced to 25 years to life in prison in 2001. She appealed. Although her petition states that her appeals were denied in 2007, the docket sheets available on the California courts' web site indicate otherwise. Those docket sheets indicate that her petition for review was filed and denied in 2003 in the California Supreme Court and her petition for writ of habeas corpus was filed and denied in 2007 in the California Supreme Court. February 1, 2008.) (See http://appellatecases.courtinfo.ca.gov.search, visited on Dockets.Justia.com Case 3:08-cv-00172-SI Document 4 Filed 02/04/2008 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bedolla then filed this action. Her federal petition has a proof of service dated December 20, 2007, and was stamped "filed" at the court on January 11, 2008. Her in forma pauperis application is outdated, as the inmate trust account statement is from 2003-2004 and the certificate of funds is dated in April 16, 2004. DISCUSSION This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. 2243. Under Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, a district court may also order the respondent to file another pleading where neither summary dismissal nor service is appropriate. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C. 2244(d)(1). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year time limit. See id. 2244(d)(2). It appears that the petition may be untimely under the AEDPA's one-year limitation 2 Case 3:08-cv-00172-SI Document 4 Filed 02/04/2008 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 period. This apparent procedural problem should be addressed before the court reaches the merits of the claims raised in the petition. If the petition is time-barred, the litigants and court need not expend resources addressing the claims in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, respondent must either (1) move to dismiss the petition on the ground that it is untimely, or (2) inform the court that CONCLUSION Good cause appearing therefor, 1. The clerk shall serve by certified mail a copy of this order, the petition, and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall send a copy of this order to petitioner. 2. Respondent must file and serve, no later than April 4, 2008, a motion to dismiss the petition or a notice that respondent is of the opinion that a motion to dismiss is unwarranted. 3. If petitioner wishes to oppose the motion to dismiss, she must do so by filing an opposition with the court and serving a copy upon respondent no later than May 9, 2008. 4. 5. Respondent must file and serve her reply, if any, no later than May 30, 2008. The motion will be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion. If respondent notifies the court that a motion to dismiss is unwarranted or the motion to dismiss is decided against respondent, the court will then determine whether to require an answer to the petition. 6. Petitioner's in forma pauperis application is DENIED because it does not have a certificate of funds and inmate trust account statement for the last six months before this action was filed. (Docket # 3.) She must pay the $5.00 filing fee no later than March 14 2008. Failure to pay the fee by the deadline will result in the dismissal of this action. IT IS SO ORDERED. DATED: February 4, 2008 _______________________ SUSAN ILLSTON United States District Judge 3 Case 3:08-cv-00172-SI Document 4-2 Filed 02/04/2008 Page 1 of 1

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