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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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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JEROME W. BORDELON,

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Petitioner,

ORDER ON INITIAL REVIEW

v.

[Re: ECF Nos. 1, 2]

M. E. SPEARMAN, Warden,

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Respondent.
_____________________________________/

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INTRODUCTION
Jerome W. Bordelon, an inmate at the Correctional Training Facility in Soledad, filed this pro se

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

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before a magistrate judge. ECF No. 1 at 7. His petition is now before the court for review pursuant

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

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District Courts.
BACKGROUND

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The petition and attachments thereto provide the following information: Mr. Bordelon was

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convicted in Contra Costa County Superior Court of a sex offense and was found to have suffered

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prior serious felony convictions. On March 2, 2006, he was sentenced to a term of 30 years in

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ORDER

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prison. Mr. Bordelon did not appeal. He did, however, file a petition for writ of habeas corpus in

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the California Supreme Court on an unstated date that was denied on May 15, 2013.

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

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he mailed it to the court on May 14, 2014. Id. at 8. The petition came to the court in an envelope

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with a May 16, 2014 postmark, was stamped "received" at the courthouse on May 21, 2014, and was

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stamped "filed" at the courthouse on May 27, 2014. ECF No. 1-3 at 1; 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

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

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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

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UNITED STATES DISTRICT COURT

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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 the petitioner from filing; (3) the constitutional right asserted was recognized by

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the 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 the 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 is

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unwarranted in this case.

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CONCLUSION

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

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For the Northern District of California

Good cause appearing therefor,

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UNITED STATES DISTRICT COURT

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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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August 15, 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 September 12, 2014.

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4. Respondent may file and serve a reply on or before September 26, 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: June 12, 2014
_______________________________
LAUREL BEELER
United States Magistrate Judge

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