Sullivan v. Biter

Filing 6

ORDER on Initial Review. Signed by Judge Edward M. Chen on 1/2/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL J. SULLIVAN,

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Petitioner,
v.

ORDER ON INITIAL REVIEW

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For the Northern District of California

United States District Court

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No. C-12-5123 EMC (pr)

M. D. BITER, Warden,

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Respondent.
___________________________________/

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I.

INTRODUCTION

Petitioner, an inmate at Kern Valley State Prison, filed this pro se action seeking a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review

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pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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II.

BACKGROUND

The petition discloses the following: Petitioner was convicted in the Contra Costa County

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Superior Court of six counts of robbery and sentence enhancement allegations were found true. On

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November 10, 2004, he was sentenced to a total of 210 years to life in state prison. He appealed.

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His conviction was affirmed by the California Court of Appeal and his petition for review was

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denied by the California Supreme Court in 2007. He filed several petitions for writ of habeas corpus

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in state court, all of which were denied.

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

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date of September 6, 2012, and came to the Court in an envelope postmarked September 11, 2012.

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The petition was stamped “filed” at the Court on October 2, 2012.

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III.

DISCUSSION

This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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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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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
appropriate.

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For the Northern District of California

United States District Court

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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 a 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

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

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

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addressing the claims in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing

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Section 2254 Cases In The United States District Courts, Respondent must either (1) move to

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dismiss the petition on the ground that it is untimely, or (2) inform the Court that Respondent is of

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the opinion that a motion to dismiss is unwarranted in this case.

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IV.

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Good cause appearing therefor,

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1.

CONCLUSION

The Clerk shall serve by certified mail a copy of this order and the petition upon

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Respondent and Respondent’s attorney, the Attorney General of the State of California. The Clerk

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shall also serve a copy of this order on Petitioner.

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For the Northern District of California

United States District Court

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2.

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

February 22, 2013, a motion to dismiss the petition or a notice that Respondent is of the opinion
that a motion to 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 March 22, 2013.

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4.

Respondent may file and serve a reply on or before April 5, 2013.

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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 GRANTED. (Docket # 2, # 4.)

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IT IS SO ORDERED.

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Dated: January 2, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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