Batalon v. Gonzales
Filing
7
ORDER on Initial Review. Signed by Judge Edward M. Chen on 12/13/2011. (Attachments: # 1 Certifcate of Service). (emcsec, COURT STAFF) (Filed on 12/13/2011)
1
2
3
4
5
UNITED STATES DISTRICT COURT
6
NORTHERN DISTRICT OF CALIFORNIA
7
8
VICENTE BATALON,
9
Petitioner,
10
v.
ORDER ON INITIAL REVIEW
11
For the Northern District of California
United States District Court
No. C-11-3810 EMC (pr)
Mr. GONZALES, Warden,
12
Respondent.
___________________________________/
13
14
15
INTRODUCTION
16
Vicente Batalon, an inmate at the California Correctional Institution in Tehachapi, filed this
17
pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before
18
the Court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254
19
Cases.
20
21
BACKGROUND
The petition and attachments thereto provide the following information: Batalon pled no
22
contest and was convicted in Alameda County Superior Court of five counts of committing a lewd
23
act on a dependent adult, see Cal. Penal Code § 288(c)(2). In 2007, he was sentenced to ten years in
24
state prison.
25
It does not appear that Batalon appealed his conviction. He did, however, file habeas
26
petitions in the state courts to challenge his conviction. The California Court of Appeal denied a
27
petition for writ of habeas corpus on May 28, 2010, and the California Supreme Court denied a
28
petition for writ of habeas corpus on February 2, 2011.
1
Batalon then filed this action, seeking a writ of habeas corpus. This action was originally
2
filed in the Eastern District of California and was later transferred to this district. The petition has a
3
signature date of July 19, 2011, and was stamped “filed” in the Eastern District on July 25, 2011.
4
DISCUSSION
5
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.
8
Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing the
9
respondent to show cause why the writ should not be granted, unless it appears from the application
10
that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Under Rule 4 of the
11
For the Northern District of California
custody pursuant to the judgment of a State court only on the ground that he is in custody in
7
United States District Court
6
Rules Governing Section 2254 Cases In The United States District Courts, a district court may also
12
order the respondent to file another pleading where neither summary dismissal nor service is
13
appropriate.
14
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became law
15
on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas
16
corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions
17
or sentences must be filed within one year of the latest of the date on which: (1) the judgment
18
became final after the conclusion of direct review or the time passed for seeking direct review; (2)
19
an impediment to filing an application created by unconstitutional state action was removed, if such
20
action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the
21
Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to
22
cases on collateral review; or (4) the factual predicate of the claim could have been discovered
23
through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly
24
filed application for state post-conviction or other collateral review is pending is excluded from the
25
one-year time limit. See id. § 2244(d)(2).
26
The petition in this action was filed more than a year after Petitioner’s conviction became
27
final, and may be untimely under the AEDPA’s one-year limitation period. This apparent
28
procedural problem should be addressed before the Court reaches the merits of the claims raised in
2
1
the petition. If the petition is time-barred, the litigants and court need not expend resources
2
addressing the claims in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing
3
Section 2254 Cases In The United States District Courts, Respondent must either (1) move to
4
dismiss the petition on the ground that it is untimely, or (2) inform the Court that Respondent is of
5
the opinion that a motion to dismiss is unwarranted in this case.
6
CONCLUSION
7
Good cause appearing therefor,
8
1.
9
11
For the Northern District of California
United States District Court
10
The Clerk shall serve by certified mail a copy of this order and the petition upon
Respondent and Respondent’s attorney, the Attorney General of the State of California. The Clerk
shall also serve a copy of this order on Petitioner.
2.
Respondent must file with the Court and serve upon Petitioner, on or before
12
February 3, 2012, a motion to dismiss the petition or a notice that Respondent is of the opinion that
13
a motion to dismiss is unwarranted.
14
15
3.
If Petitioner wishes to oppose the motion to dismiss, he must do so by filing an
opposition with the Court and serving it upon Respondent on or before March 9, 2012.
16
4.
Respondent may file and serve a reply on or before March 26, 2012.
17
5.
The motion will be deemed submitted as of the date the reply brief is due. No
18
hearing will be held on the motion. If Respondent notifies the Court that a motion to dismiss is
19
unwarranted or the motion to dismiss is decided against Respondent, the Court will then determine
20
whether to require an answer to the petition.
21
6.
Petitioner’s in forma pauperis application is GRANTED. (Docket # 2.)
22
23
IT IS SO ORDERED.
24
25
Dated: December 13, 2011
_________________________
EDWARD M. CHEN
United States District Judge
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?