Troncoso v. Spearman

Filing 6

ORDER ON INITIAL REVIEW (Re: ECF Nos. 1 and 2): Re 2 MOTION for Leave to Proceed in forma pauperis filed by Johnny Henry Troncoso. Signed by Magistrate Judge Laurel Beeler on 3/17/2014. (Attachments: # 1 Certificate/Proof of Service)(ls, COURT STAFF) (Filed on 3/17/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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For the Northern District of California

UNITED STATES DISTRICT COURT

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JOHNNY HENRY TRONCOSO,

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Petitioner,

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ORDER ON INITIAL REVIEW

v.

[Re: ECF Nos. 1 and 2]

M. E. SPEARMAN, Warden,

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No. C 14-938 LB

Respondent.
_____________________________________/

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INTRODUCTION

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Petitioner, an inmate at the Correctional Training Facility in Soledad, filed this pro se action

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seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to proceed

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before a magistrate judge. ECF No. 4. His petition is now before the court for review pursuant to

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28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts.
BACKGROUND

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The petition and attachments thereto provide the following information:

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Petitioner was convicted in Santa Clara County Superior Court of shooting at an occupied motor

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vehicle, assault with a firearm, being in possession of a firearm, and transportation of

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methamphetamine. On September 21, 2005, he was sentenced to 14 years in state prison. ECF No.

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1 at 2.

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Petitioner appealed. The California Court of Appeal affirmed the judgment of conviction in
2006. The California Supreme Court denied his petition for review in 2007. Id. at 3
Several years later, petitioner filed several unsuccessful habeas petitions in the state courts. The

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Santa Clara County Superior Court denied his habeas petition on March 12, 2013; the California

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Court of Appeal denied his habeas petition on August 16, 2013; and the California Supreme Court

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denied his habeas petition on December 11, 2013. Id. at 4-5.

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Petitioner then filed this action. His federal habeas petition has a proof of service stating that

an envelope with a February 19, 2014 postmark and was stamped "filed" on February 28, 2014. ECF

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For the Northern District of California

petitioner mailed it to the court on February 14, 2014. Id. at 24. The petition came to the court in

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UNITED STATES DISTRICT COURT

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No. 1-1 at 2; ECF No. 1 at 1.

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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 custody

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

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Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423

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

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

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

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

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the respondent to file another motion or response 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 on

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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 final,

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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For the Northern District of California

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

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UNITED STATES DISTRICT COURT

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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 is

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unwarranted in this case.

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CONCLUSION

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Good cause appearing therefor,

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1. The clerk shall serve a copy of this order, the petition, and the "consent or declination to

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magistrate judge jurisdiction" form upon respondent and respondent's attorney, the Attorney General

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of the State of California. The clerk also shall 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 23, 2014, 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

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with the court and serving it upon respondent on or before June 20, 2014.

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4. Respondent may file and serve a reply on or before July 11, 2014.

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

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be held on the motion. If respondent notifies the court that a motion to dismiss is unwarranted or the

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motion to dismiss is decided against respondent, the court will then determine whether to require an

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answer to the petition.

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6. Petitioner's in forma pauperis application is GRANTED. ECF No. 2.

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IT IS SO ORDERED.

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Dated: March 17, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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