Johnson v. Swarthout

Filing 6

AMENDED ORDER ON INITIAL REVIEW re 5 Order on Motion for Leave to Proceed in forma pauperis, Order on Motion to Appoint Counsel. Signed by Judge Edward M. Chen on 3/22/13. (bpf, COURT STAFF) (Filed on 3/22/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ISHMAEL JOHNSON,

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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 13-506 EMC (pr)

GARY SWARTHOUT, Warden,

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Respondent.
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INTRODUCTION
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Ishmael Johnson, an inmate at the California State Prison -Solano, filed this pro se action
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seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court
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for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.
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BACKGROUND
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The petition discloses the following: Petitioner was convicted in the Alameda County
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Superior Court of murder, carjacking, and attempted murder, with sentence enhancements. On
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December 13, 2007, he was sentenced to life imprisonment without the possibility of parole plus six
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years. He appealed. His conviction was affirmed by the California Court of Appeal in 2010, and his
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petition for review was denied by the California Supreme Court in 2010. Petitioner apparently did
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not file any petitions for writ of habeas corpus in state court.
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Petitioner then filed this action, seeking a writ of habeas corpus. The petition has a proof of
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service showing it was mailed to the Court on January 27, 2013. The envelope in which the petition
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arrived at the courthouse was postmarked January 31, 2013. The petition was stamped "received"

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on February 1, 2013 and "filed" on February 5, 2013.

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DISCUSSION

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

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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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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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Petitioner has requested that counsel be appointed to represent him in this action. A district

interests of justice so require" and such person is financially unable to obtain representation. 18

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U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district

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court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only

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when the circumstances of a particular case indicate that appointed counsel is necessary to prevent

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For the Northern District of California

court may appoint counsel to represent a habeas petitioner whenever "the court determines that the

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United States District Court

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due process violations. See id. The interests of justice do not require appointment of counsel at this

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time. The request for appointment of counsel is DENIED. (Docket # 2.)

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CONCLUSION

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Good cause appearing therefor,

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1.

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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2.

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

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May 31, 2013, a motion to dismiss the petition or a notice that Respondent is of the opinion that a

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motion to dismiss is unwarranted.

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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 June 28, 2013.

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4.

Respondent may file and serve a reply on or before July 12, 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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///

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Petitioner's motion for appointment of counsel is DENIED. (Docket # 2.)

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Petitioner's in forma pauperis application is GRANTED. (Docket # 4.)

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IT IS SO ORDERED.

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Dated: March 22, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ISHMAEL JOHNSON,
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Case Number: CV13-00506 EMC
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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GARY SWARTHOUT et al,
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Defendant.
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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 22, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Ishmael Johnson G-13794
CSP-Solano
P.O. Box 4000
Vacaville, CA 95696-4000
Dated: March 22, 2013
Richard W. Wieking, Clerk
By: Betty Lee, Deputy Clerk

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