Brockett v. Sherman

Filing 2

ORDER ON INITIAL REVIEW (Illston, Susan) (Filed on 6/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH HENRY BROCKETT,
Plaintiff,

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ORDER ON INITIAL REVIEW

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v.

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STU SHERMAN,

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United States District Court
Northern District of California

Case No. 17-cv-00984-SI

Re: Dkt. No. 1
Defendant.

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Joseph Henry Brockett, an inmate at California Substance Abuse Treatment Facility and

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State Prison in Corcoran, filed this pro se action seeking a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and

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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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BACKGROUND

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The petition and attachments thereto provide the following information: Brockett was

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convicted in San Mateo County Superior Court in 2004 of first degree burglary, petty theft, and

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two counts of possession of a dangerous weapon (namely, a dirk or dagger). On March 11, 2004,

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he was sentenced to sixty years to life in prison. Brockett appealed. His conviction was affirmed

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by the California Court of Appeal and his petition for review was denied in 2005. He also filed

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unsuccessful petitions for writ of habeas corpus in the California Supreme Court in 2016.

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Brockett also apparently filed a petition for resentencing under the Three Strikes Reform

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Act, California Penal Code § 1170.126. It is not known whether he ultimately received any

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reduction in his sentence. See People v. Brockett, 2015 WL 9014616 (Cal. Ct. App. Dec. 16,

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2015) (remanding case for further consideration in light of decision in People v. Johnson, 61 Cal.

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4th 674 (Cal. 2015), that eligibility for resentencing under Three Strikes Reform Act must be

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decided on a count-by-count basis). The federal petition for writ of habeas corpus challenges

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Brockett’s original sentence from 2004, rather than the resentencing proceedings in 2015.

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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

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United States District Court
Northern District of California

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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). A

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district court considering an application for a writ of habeas corpus shall “award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243.

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Brockett presents a single claim in his petition. He contends that California’s Three

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Strikes law violates his right to due process under the U.S. Constitution’s Fourteenth Amendment

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because it is “void for vagueness” as applied to his case. Docket No. 1-1 at 7.1

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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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Brockett also cites the Fifth Amendment’s Due Process Clause, but that provision is
inapplicable to his situation because Brockett is serving a sentence from a state court. The Fifth
Amendment’s Due Process Clause limits the federal government, whereas the Fourteenth
Amendment’s Due Process Clause limits state governments.
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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
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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United States District Court
Northern District of California

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This apparent

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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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 a copy of this order and the petition upon respondent and

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respondent’s attorney, the Attorney General of the State of California. The clerk shall also serve a

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copy of this order on petitioner.

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2.

Respondent must file and serve upon petitioner, on or before September 8, 2017, a

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motion to dismiss the petition or a notice that respondent is of the opinion that a motion to dismiss

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is unwarranted.

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3.

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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 October 6, 2017.
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Respondent may file and serve a reply on or before October 20, 2017.

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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: June 26, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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