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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 JOHNNY HENRY TRONCOSO, 13 Petitioner, 14 15 ORDER ON INITIAL REVIEW v. [Re: ECF Nos. 1 and 2] M. E. SPEARMAN, Warden, 16 17 No. C 14-938 LB Respondent. _____________________________________/ 18 19 INTRODUCTION 20 Petitioner, an inmate at the Correctional Training Facility in Soledad, filed this pro se action 21 seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to proceed 22 before a magistrate judge. ECF No. 4. His petition is now before the court for review pursuant to 23 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District 24 Courts. BACKGROUND 25 26 The petition and attachments thereto provide the following information: 27 Petitioner was convicted in Santa Clara County Superior Court of shooting at an occupied motor 28 vehicle, assault with a firearm, being in possession of a firearm, and transportation of C 14-938 LB ORDER 1 methamphetamine. On September 21, 2005, he was sentenced to 14 years in state prison. ECF No. 2 1 at 2. 3 4 5 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 6 Santa Clara County Superior Court denied his habeas petition on March 12, 2013; the California 7 Court of Appeal denied his habeas petition on August 16, 2013; and the California Supreme Court 8 denied his habeas petition on December 11, 2013. Id. at 4-5. 9 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 12 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 11 UNITED STATES DISTRICT COURT 10 No. 1-1 at 2; ECF No. 1 at 1. 13 DISCUSSION 14 This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody 15 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the 16 Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 17 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent 18 to show cause why the writ should not be granted, unless it appears from the application that the 19 applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Under Rule 4 of the Rules 20 Governing Section 2254 Cases In The United States District Courts, a district court may also order 21 the respondent to file another motion or response where neither summary dismissal nor service is 22 appropriate. 23 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on 24 April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas 25 corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions 26 or sentences must be filed within one year of the latest of the date on which: (1) the judgment 27 became final after the conclusion of direct review or the time passed for seeking direct review; (2) 28 an impediment to filing an application created by unconstitutional state action was removed, if such C 14-938 LB ORDER 2 1 action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the 2 Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to 3 cases on collateral review; or (4) the factual predicate of the claim could have been discovered 4 through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly 5 filed application for state post-conviction or other collateral review is pending is excluded from the 6 one-year time limit. See id. § 2244(d)(2). 7 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. 10 If the petition is time-barred, the litigants and court need not expend resources addressing the claims 11 in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases In The 12 For the Northern District of California and may be untimely under the AEDPA's one-year limitation period. This apparent procedural 9 UNITED STATES DISTRICT COURT 8 United States District Courts, respondent must either (1) move to dismiss the petition on the ground 13 that it is untimely, or (2) inform the court that respondent is of the opinion that a motion to dismiss is 14 unwarranted in this case. 15 CONCLUSION 16 Good cause appearing therefor, 17 1. The clerk shall serve a copy of this order, the petition, and the "consent or declination to 18 magistrate judge jurisdiction" form upon respondent and respondent's attorney, the Attorney General 19 of the State of California. The clerk also shall serve a copy of this order on petitioner. 20 2. Respondent must file with the court and serve upon petitioner, on or before 21 May 23, 2014, a motion to dismiss the petition or a notice that respondent is of the opinion that a 22 motion to dismiss is unwarranted. 23 3. If petitioner wishes to oppose the motion to dismiss, he must do so by filing an opposition 24 with the court and serving it upon respondent on or before June 20, 2014. 25 4. Respondent may file and serve a reply on or before July 11, 2014. 26 5. The motion will be deemed submitted as of the date the reply brief is due. No hearing will 27 be held on the motion. If respondent notifies the court that a motion to dismiss is unwarranted or the 28 motion to dismiss is decided against respondent, the court will then determine whether to require an C 14-938 LB ORDER 3 1 answer to the petition. 2 6. Petitioner's in forma pauperis application is GRANTED. ECF No. 2. 3 IT IS SO ORDERED. 4 Dated: March 17, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 14-938 LB ORDER 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?