Smith v. Soto
Filing
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ORDER ON INITIAL REVIEW (Illston, Susan) (Filed on 9/6/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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BOBBIE L. SMITH,
Case No. 16-cv-00697-SI
Plaintiff,
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v.
ORDER ON INITIAL REVIEW
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Re: Dkt. Nos. 1, 13
JOHN SOTO,
Defendant.
United States District Court
Northern District of California
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BACKGROUND
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Bobbie L. Smith, an inmate at the California State Prison in Lancaster, filed this pro se
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action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is now before the
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court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254
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Cases in the United States District Courts.
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BACKGROUND
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The petition provides the following information: Smith was convicted in Alameda County
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Superior Court of attempted murder, assault with a firearm, shooting at an inhabited dwelling, and
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child endangerment. Sentence enhancement allegations were found true. On March 7, 2012,
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Smith was sentenced to a total of 51 years and 8 months in prison. Smith appealed. His
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conviction was affirmed by the California Court of Appeal in 2012, and his petition for review
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was denied by the California Supreme Court in 2013.
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Smith then filed this action. His federal habeas petition is dated January 25, 2016. The
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envelope used to mail the petition has no visible postmark date, but was stamped “Received” at
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the courthouse on January 28, 2016. The petition was stamped “Filed” on February 11, 2016.
DISCUSSION
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This court may entertain a petition for writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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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
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the respondent to show cause why the writ should not be granted, unless it appears from the
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application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Under
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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, a district
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court may also order the respondent to file another pleading where neither summary dismissal nor
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service is appropriate.
United States District Court
Northern District of California
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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became
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law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of
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habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital state
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convictions or sentences must be filed within one year of the latest of the date on which: (1) the
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judgment became final after the conclusion of direct review or the time passed for seeking direct
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review; (2) an impediment to filing an application created by unconstitutional state action was
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removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was
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recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and
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made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have
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been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during
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which a properly filed application for state post-conviction or other collateral review is pending is
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excluded from the 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.
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procedural problem should be addressed before the court reaches the merits of the claims raised in
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the petition. If the petition is time-barred, the litigants and court need not expend resources
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addressing the claims in the petition. Accordingly, pursuant to Rule 4 of the Rules Governing
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Section 2254 Cases in the United States District Courts, respondent must either (1) move to
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This apparent
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dismiss the petition on the ground that it is untimely, or (2) inform the court that respondent is of
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the opinion that a motion to dismiss is 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 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 and serve upon petitioner, on or before November 11, 2016,
a motion to dismiss the petition or a notice that respondent is of the opinion that a motion to
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United States District Court
Northern District of California
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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 December 9, 2016.
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4.
Respondent may file and serve a reply on or before December 23, 2016.
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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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IT IS SO ORDERED.
Dated: September 6, 2016
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SUSAN ILLSTON
United States District Judge
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