United States v. Johnson

MEMORANDUM **

Mark E. Johnson appeals the district court’s denial of his “motion to return de *833 fendant to jurisdiction, release of custody, re-instatement of right,” in which he raises many claims relating to both his conviction and conditions of confinement. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part, and reverse and remand, in part.

(1) Because part of Johnson’s petition challenged the legality of his detention, the district court properly construed it as a motion pursuant to 28 U.S.C. § 2255 , which must be brought in the sentencing court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000). The district court dismissed Johnson’s petition as untimely, however, because it was filed on February 16, 2000, which was more than one year from the latest date that his conviction became final, January 23, 1998 (ie., when the district court received a certified copy of this Court’s judgment affirming his conviction on direct appeal). 1 28 U.S.C. § 2255 (1). That sua sponte dismissal based on the AEDPA’s one-year limitation constituted error, because the district court did not first provide Johnson with notice and an opportunity to respond. Herbst…