Bordelon v. Spearman

Filing 5

ORDER ON INITIAL REVIEW (RE: ECF No. 1, 2). Petitioner's in forma pauperis application is GRANTED. ECF No. 2. Signed by Magistrate Judge Laurel Beeler on 6/12/2014. (Attachments: # 1 Certificate/Proof of Service)(ls, COURT STAFF) (Filed on 6/12/2014) Modified on 6/12/2014 (ls, COURT STAFF).

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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 JEROME W. BORDELON, 13 14 15 Petitioner, ORDER ON INITIAL REVIEW v. [Re: ECF Nos. 1, 2] M. E. SPEARMAN, Warden, 16 17 No. C 14-2425 LB Respondent. _____________________________________/ 18 19 20 INTRODUCTION Jerome W. Bordelon, an inmate at the Correctional Training Facility in Soledad, filed this pro se 21 action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to proceed 22 before a magistrate judge. ECF No. 1 at 7. His petition is now before the court for review pursuant 23 to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States 24 District Courts. BACKGROUND 25 26 The petition and attachments thereto provide the following information: Mr. Bordelon was 27 convicted in Contra Costa County Superior Court of a sex offense and was found to have suffered 28 prior serious felony convictions. On March 2, 2006, he was sentenced to a term of 30 years in C 14-2425 LB ORDER 1 prison. Mr. Bordelon did not appeal. He did, however, file a petition for writ of habeas corpus in 2 the California Supreme Court on an unstated date that was denied on May 15, 2013. 3 Mr. Bordelon then filed this action. His federal habeas petition has a proof of service stating that 4 he mailed it to the court on May 14, 2014. Id. at 8. The petition came to the court in an envelope 5 with a May 16, 2014 postmark, was stamped "received" at the courthouse on May 21, 2014, and was 6 stamped "filed" at the courthouse on May 27, 2014. ECF No. 1-3 at 1; ECF No. 1 at 1. 7 DISCUSSION 8 This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody 9 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent 12 For the Northern District of California Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 11 UNITED STATES DISTRICT COURT 10 to show cause why the writ should not be granted, unless it appears from the application that the 13 applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Under Rule 4 of the Rules 14 Governing Section 2254 Cases In The United States District Courts, a district court may also order 15 the respondent to file another motion or response where neither summary dismissal nor service is 16 appropriate. 17 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on 18 April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas 19 corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state convictions 20 or sentences must be filed within one year of the latest of the date on which: (1) the judgment 21 became final after the conclusion of direct review or the time passed for seeking direct review; (2) 22 an impediment to filing an application created by unconstitutional state action was removed, if such 23 action prevented the petitioner from filing; (3) the constitutional right asserted was recognized by 24 the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to 25 cases on collateral review; or (4) the factual predicate of the claim could have been discovered 26 through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly 27 filed application for state post-conviction or other collateral review is pending is excluded from the 28 one-year time limit. See id. § 2244(d)(2). C 14-2425 LB ORDER 2 1 The petition in this action was filed more than a year after the petitioner's conviction became 2 final, and may be untimely under the AEDPA's one-year limitation period. This apparent procedural 3 problem should be addressed before the court reaches the merits of the claims raised in the petition. 4 If the petition is time-barred, the litigants and court need not expend resources addressing the claims 5 in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing Section 2254 Cases In The 6 United States District Courts, respondent must either (1) move to dismiss the petition on the ground 7 that it is untimely, or (2) inform the court that respondent is of the opinion that a motion to dismiss is 8 unwarranted in this case. 9 CONCLUSION 1. The clerk shall serve a copy of this order, the petition, and the "consent or declination to 12 For the Northern District of California Good cause appearing therefor, 11 UNITED STATES DISTRICT COURT 10 magistrate judge jurisdiction" form upon respondent and respondent's attorney, the Attorney General 13 of the State of California. The clerk also shall serve a copy of this order on petitioner. 14 2. Respondent must file with the court and serve upon petitioner, on or before 15 August 15, 2014, a motion to dismiss the petition or a notice that respondent is of the opinion that a 16 motion to dismiss is unwarranted. 17 3. If petitioner wishes to oppose the motion to dismiss, he must do so by filing an opposition 18 with the court and serving it upon respondent on or before September 12, 2014. 19 4. Respondent may file and serve a reply on or before September 26, 2014. 20 5. The motion will be deemed submitted as of the date the reply brief is due. No hearing will 21 be held on the motion. If respondent notifies the court that a motion to dismiss is unwarranted or the 22 motion to dismiss is decided against respondent, the court will then determine whether to require an 23 answer to the petition. 24 6. Petitioner's in forma pauperis application is GRANTED. ECF No. 2. 25 IT IS SO ORDERED. 26 Dated: June 12, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 27 28 C 14-2425 LB ORDER 3

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