June 25, 2013
SANTOS ROSALES-MARTINEZ, Petitioner,
NICK LUDWICK, Warden Respondent.
INITIAL REVIEW ORDER
DONALD E. O'BRIEN, District Judge.
Currently before the Court is the Petition for Writ of Habeas Corpus filed by Santos Rosales-Martinez [hereinafter Mr. Rosales-Martinez]. Mr. Rosales-Martinez is currently incarcerated at the Iowa State Penitentiary pursuant to a conviction for Second Degree Sexual Abuse. Docket No. 1, p. 1; See also State v. Rosales-Martinez, 666 N.W.2d 621 (Iowa Ct. App. 2003).
On May 13, 2013, Mr. Rosales-Martinez filed a pro se petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus in the Southern District of Iowa. Docket No. 1. The filing fee for a Writ of Habeas Corpus is $5, which Mr. Rosales-Martinez paid (28 U.S.C. § 1914(a)). Mr. Rosales-Martinez also included an application for appointment of counsel.
On May 14, 2013, Senior District Court Judge Harold D. Vietor entered an Order transferring this case to the Northern District of Iowa. See Docket No. 2. This Court received the case the next day, on May 15, 2013.
A. Initial Review Standard
Rule 4 of the Rules Governing Section 2254 cases provides that the court shall conduct an initial review of the petition for habeas corpus and summarily dismiss it, order a response, or "take such action as the judge deems appropriate." See Rule 4, Rules Governing Section 2254 Cases. The court may summarily dismiss an application without ordering a response if it plainly appears from the face of the application and its exhibits that the petitioner is not entitled to relief. See id.; 28 U.S.C. § 2243; Small v. Endicott , 998 F.2d 411, 414 (7th Cir. 1993) (explaining that "Rule 4 enables the district court to dismiss a petition summarily, without reviewing the record at all, if it determines that the petition and any attached exhibits either fail to state a claim or are factually frivolous, " and "[e]ven if the petition clears those hurdles, the district court still need not independently review the record so long as the petitioner does not dispute that the facts reported in the state court opinions faithfully and accurately reflect the record." (citing Davis v. Franzen , 671 F.2d 1056, 1057 (7th Cir. 1982))); see also Barnett v. Roper , 541 F.3d 804, 807 (8th Cir. 2008) (district court may consider sua sponte the timeliness of a state prisoner's habeas petition (citing Day v. McDonough , 547 U.S. 188, 209 (2006))).
B. 28 U.S.C. § 2244(d)
A petitioner has one year from the time a state court judgment becomes final to apply for a federal writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). A judgment is final, for these purposes, at the conclusion of all direct criminal appeals in the state system followed by either (1) the denial of certiorari or (2) the expiration of the time allotted for filing a petition for a writ of certiorari. Smith v. Bowersox , 159 F.3d 345, 348 (8th Cir. 1998). A petitioner has ninety days from the date of entry of judgment in a state court of last resort to petition the United States Supreme Court for a writ of certiorari. Sup.Ct. R. 13. Mr. Rosales-Martinez filed an application for post-conviction relief, which was litigated to the Iowa Court of Appeals. The Iowa Court of Appeals denied his Application on on December 11, 2011. See Rosales-Martinez v. State , 810 N.W.2d 26 (Table) (Iowa Ct. App. 2011). The Iowa Supreme Court denied further review on February 14, 2012, and procedendo issued on February 21, 2012. Thus, for the Court's purposes, the clock to file the Habeas Petition began running on February 21, 2012. Mr. Rosales-Martinez had one year (per 28 U.S.C. § 2244(d)(1)(A)) and ninety days (per the Supreme Court Rule) to file his Habeas Petition. Thus, according to the Court's calculations, he had until, approximately, May 21, 2013. Mr. Rosales-Martinez mailed his Petition on May 10, 2013, and it was filed on May 13, 2013. For purposes of Initial Review, it appears that Mr. Rosales-Martinez filed his application within the allotted time period.
C. Other Matters
As discussed above, in this type of case, the Court is to conduct an initial review and may dismiss the petition if it fails on its face. It appears to the Court that Mr. Rosales-Martinez's Petition has met the procedural requirements and should be allowed to proceed past the initial review stage.
III. MOTION TO APPOINT COUNSEL
Mr. Rosales-Martinez has requested that counsel be appointed in this case. 28 U.S.C.A. § 2254(h) states:
Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
The Court has considered this matter and is persuaded that the interest of justice requires that counsel be appointed in this case. Once appointed, counsel shall filed an Amended Petition consistent with this Order.
For the reasons set out above, Mr. Rosales-Martinez's Habeas Petition shall be allowed to proceed. The Clerk shall mail the Petition and a copy of this Order by certified mail to the Respondent as directed on the attached service forms. Additionally, Mr. Rosales-Martinez will be appointed counsel. Appointed counsel shall file an Amended Petition within 45 days of his/her appointment. All future pleadings shall be filed through appointed counsel.
IT IS SO ORDERED.