Villalobos v. People of the State of California and Warden

Filing 3

ORDER on Initial Review. Signed by Judge Edward M. Chen on 5/30/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 5/30/2012)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ARMANDO VILLALOBOS, 9 Petitioner, v. ORDER ON INITIAL REVIEW 11 For the Northern District of California United States District Court 10 No. C-12-1165 EMC (pr) C. GIPSON, Warden, 12 Respondent. ___________________________________/ 13 14 15 16 I. INTRODUCTION Armando Villalobos, an inmate at the California State Prison - Corcoran, filed this pro se 17 action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the 18 Court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 19 Cases In The United States District Court. 20 21 II. BACKGROUND The petition provides the following information: Villalobos was convicted of an unspecified 22 crime in Santa Clara County Superior Court and was sentenced to a prison term of an unidentified 23 length on October 24, 2008, for which he currently is in custody. Villalobos appealed. The 24 judgment of conviction was affirmed by the California Court of Appeal in 2009 and the petition for 25 review was denied by the California Supreme Court in 2010. 26 Villalobos then filed this action, seeking a writ of habeas corpus. The petition has a 27 signature date of February 1, 2012, and came to the Court in an envelope postmarked February 29, 28 2012. The in forma pauperis application in the envelope with the petition has a signature date of 1 February 1, 2012, and a certificate of funds dated February 22, 2012. The petition was stamped 2 "filed" at the Court on March 8, 2012. 3 4 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. 7 Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the 8 respondent to show cause why the writ should not be granted, unless it appears from the application 9 that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Under Rule 4 of the 10 Rules Governing Section 2254 Cases In The United States District Courts, a district court may also 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 6 United States District Court 5 order the respondent to file another pleading where neither summary dismissal nor service is 12 appropriate. 13 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law 14 on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas 15 corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions 16 or sentences must be filed within one year of the latest of the date on which: (1) the judgment 17 became final after the conclusion of direct review or the time passed for seeking direct review; (2) 18 an impediment to filing an application created by unconstitutional state action was removed, if such 19 action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the 20 Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to 21 cases on collateral review; or (4) the factual predicate of the claim could have been discovered 22 through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly 23 filed application for state post-conviction or other collateral review is pending is excluded from the 24 one-year time limit. See id. § 2244(d)(2). 25 The petition in this action was filed more than a year after Petitioner's conviction became 26 final, and may be untimely under the AEDPA's one-year limitation period. This apparent procedural 27 problem should be addressed before the Court reaches the merits of the claims raised in the petition. 28 If the petition is time-barred, the litigants and Court need not expend resources addressing the claims 2 1 in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases In The 2 United States District Courts, Respondent must either (1) move to dismiss the petition on the ground 3 that it is untimely, or (2) inform the Court that Respondent is of the opinion that a motion to dismiss 4 is unwarranted in this case. 5 IV. 6 Good cause appearing therefor, 7 1. CONCLUSION The Clerk shall serve by certified mail a copy of this order and the petition upon 8 Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk 9 shall also serve a copy of this order on Petitioner. 2. Respondent must file with the Court and serve upon Petitioner, on or before July 27, 11 For the Northern District of California United States District Court 10 2012, a motion to dismiss the petition or a notice that Respondent is of the opinion that a motion to 12 dismiss is unwarranted. 13 14 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 August 31, 2012. 15 4. Respondent may file and serve a reply on or before September 14, 2012. 16 5. The motion will be deemed submitted as of the date the reply brief is due. No 17 hearing will be held on the motion. If Respondent notifies the Court that a motion to dismiss is 18 unwarranted or the motion to dismiss is decided against Respondent, the Court will then determine 19 whether to require an answer to the petition. 20 6. Petitioner's in forma pauperis application is GRANTED. (Docket # 2.) 21 22 IT IS SO ORDERED. 23 24 Dated: May 30, 2012 _________________________ EDWARD M. CHEN United States District Judge 25 26 27 28 3

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