Nieder v. Chavez

Filing 7

ORDER on Initial Review. Signed by Judge Edward M. Chen on 2/16/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 2/16/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH JOHN NIEDER,

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Petitioner,

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v.

ORDER ON INITIAL REVIEW

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For the Northern District of California

United States District Court

No. C-11-5125 EMC (pr)

F. X. CHAVEZ, Warden,

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Respondent.
___________________________________/

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I.

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INTRODUCTION

John Joseph Nieder, an inmate at the Sierra Conservation Camp in Jamestown, California,

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filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is

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now before the Court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing

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Section 2254 Cases.

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II.

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BACKGROUND

Nieder's petition discloses the following: Nieder was convicted in the Sonoma County

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Superior Court of several sex offenses against minors, see Cal. Penal Code § 288.5, 289(j), 288.2,

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311.4(c). On November 14, 2006, he was sentenced to a total of 28 years in state prison. He

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appealed. His conviction was affirmed by the California Court of Appeal in 2007. He did not file a

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petition for review in the California Supreme Court. Nieder filed several petitions for writ of habeas

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corpus in state court, all of which were denied.

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Nieder then filed this action, seeking a writ of habeas corpus. The petition has a signature

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date of October 9, 2011, and came to the Court in an envelope postmarked October 11, 2011. The

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petition was stamped "filed" at the Court on October 19, 2011.

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III.

DISCUSSION

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.

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Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the

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respondent to show cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Under Rule 4 of the

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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

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United States District Court

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Rules Governing Section 2254 Cases In The United States District Courts, a district court may also

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order the respondent to file another pleading where neither summary dismissal nor service is

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appropriate.

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The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law

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on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas

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corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions

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or sentences must be filed within one year of the latest of the date on which: (1) the judgment

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became final after the conclusion of direct review or the time passed for seeking direct review; (2)

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an impediment to filing an application created by unconstitutional state action was removed, if such

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action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the

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Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to

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cases on collateral review; or (4) the factual predicate of the claim could have been discovered

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through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly

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filed application for state post-conviction or other collateral review is pending is excluded from the

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one-year time limit. See id. § 2244(d)(2).

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The petition in this action was filed more than a year after Petitioner's conviction became

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final, and may be untimely under the AEDPA's one-year limitation period. This apparent procedural

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problem should be addressed before the Court reaches the merits of the claims raised in the petition.

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If the petition is time-barred, the litigants and Court need not expend resources addressing the claims

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in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases In The

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United States District Courts, Respondent must either (1) move to dismiss the petition on the ground

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that it is untimely, or (2) inform the Court that Respondent is of the opinion that a motion to dismiss

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is unwarranted in this case.

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IV.

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Good cause appearing therefor,

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1.

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For the Northern District of California

United States District Court

CONCLUSION

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.
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Respondent must file with the Court and serve upon Petitioner, on or before April 13,

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2012, a motion to dismiss the petition or a notice that Respondent is of the opinion that a motion to

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dismiss is unwarranted.

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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 May 18, 2012.

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4.

Respondent may file and serve a reply on or before June 4, 2012.

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5.

The motion will be deemed submitted as of the date the reply brief is due. No

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hearing will be held on the motion. If Respondent notifies the Court that a motion to dismiss is

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unwarranted or the motion to dismiss is decided against Respondent, the Court will then determine

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whether to require an answer to the petition.

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6.

Petitioner's in forma pauperis application is DENIED because he has sufficient

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income to his trust account to pay the filing fee. (Docket # 4, #6). Petitioner must pay the $5.00

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filing fee no later than March 30, 2012.

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IT IS SO ORDERED.

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Dated: February 16, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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