Tiedemann v. Utah, State of
Filing
32
MEMORANDUM DECISION & Order Denying Habeas Petition-granting 30 Motion to Dismiss for Lack of Jurisdiction. This habeas corpus petition is DENIED without prejudice. Case Closed. Signed by Judge Clark Waddoups on 2/22/12. (jmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) MEMORANDUM DECISION & ORDER
) DENYING HABEAS PETITION
Petitioner,
)
) Case No. 2:10-CV-1277 CW
v.
)
) District Judge Clark Waddoups
STEVEN TURLEY,
)
)
Respondent.
)
_________________________________________________________________
EDGAR TIEDEMANN,
Petitioner, Edgar Tiedemann, filed this habeas corpus
petition,1 in which he attacks the same convictions he attacked
in a prior petition pending in this Court.2
The Court thus
determines that the current petition should be denied as "second
or successive."3
"SECOND OR SUCCESSIVE" ANALYSIS
The Court lacks jurisdiction over this second or successive
habeas application absent prior authorization from the Tenth
Circuit Court of Appeals.4
Because Petitioner has not sought
such authorization, the Court may not consider the merits of the
petition.
Under 28 U.S.C.S. § 1631 (2012), the Court has discretion to
transfer this misfiled petition to the court of appeals "if . . .
1
See 28 U.S.C.S. § 2254 (2012).
2
See Tiedemann v. Bigelow, No. 2:10-CV-803 CW (D. Utah Aug. 12, 2010);
Tiedemann v. Bigelow, No. 2:10-CV-904 DB (D. Utah Sept. 13, 2010).
3
See U.S.C.S. § 2244(b) (2012).
4
See id. § 2244(b)(3)(A).
it is in the interest of justice."
In determining here that a
transfer would not be in the interest of justice, the Court has
examined
whether the claims would be time barred if
filed anew in the proper forum, whether the
claims alleged are likely to have merit, and
whether the claims were filed in good faith
or if, on the other hand, it was clear at the
time of filing that the court lacked the
requisite jurisdiction.5
First, the issue of a time bar appears applicable here.
Petitioner's conviction was affirmed on appeal in state court on
September 24, 2009.
That gave him thirty days--until October 24,
2009--to petition for writ of certiorari in Utah Supreme Court,
which he did not.
So, his conviction became final on that day.
The period of limitation in federal habeas corpus cases is one
year.6
The year expired on October 24, 2010.
not filed until December 29, 2010.
This petition was
And, Petitioner has argued no
grounds for tolling.
Second, it should have been obvious to Petitioner, upon
filing claims redundant of those raised in his earlier case,
currently pending in this Court, that this petition was not filed
in good faith and that this Court would lack jurisdiction over
such a second or successive petition.
The Court will review the
5
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
6
28 U.S.C.S. 2244(d)(1)(A) (2012).
2
merits of the earlier case upon receiving the State's amended
answer.
CONCLUSION
The Court lacks jurisdiction to review this second or
successive petition.
And, it determines that it is not in the
interest of justice to transfer the case to the Tenth Circuit
Court of Appeals.
IT IS THEREFORE ORDERED that Respondent's motion to dismiss
is GRANTED.7
prejudice.
This habeas corpus petition is DENIED without
This case is CLOSED.
DATED this 22nd day of February, 2012.
BY THE COURT:
__________________________
CLARK WADDOUPS
United States Magistrate Judge
7
(See Docket Entry # 30.)
3
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