The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 17]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 17, 2006, the Board of Parole Hearings' ("Board") found Petitioner unsuitable for parole. On August 23, 2006, Petitioner filed a state habeas corpus petition in the Kings County Superior Court raising several challenges to the Board's decision. The Kings County Superior Court forwarded the petition to the Los Angeles County Superior Court, which received the petition on September 11, 2006. (Exhibit 2, to Motion, April 19, 2007 Los Angeles County Order.) The court ordered Petitioner to serve a copy of the petition on the Attorney's General Office as required by California Penal Code section 1475. (Id.) The court specifically ordered that Petitioner lodge a complete copy of the petition including exhibits with the court clerk for service on the Attorney General's Office. (Id.)
Upon receiving a copy of Petitioner's petition and exhibits, the court ordered Petitioner to submit a copy of the complete transcript of the March 17, 2006 parole hearing. (Exhibit 3, June 1, 2007 Los Angeles County Order.) Petitioner submitted the transcript and the superior court served a copy of the petition on the Attorney General's Office on June 25, 2007. (Exhibits 5, 6.) On August 22, 2007, the superior court denied the petition in a reasoned decision. (Exhibit 6.)
On October 18, 2007, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. (Exhibit 7.) The court denied the petition on November 9, 2007, citing In re Rosenkrantz, 29 Cal.4th 616, 667 (2002). (Exhibit 8.) Petitioner then proceeded to petition the California Supreme Court on March 24, 2008. (Exhibit 9.) The petition was denied on August 27, 2008, with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Exhibit 10.)
Petitioner filed the instant federal petition for writ of habeas corpus on October 13, 2008. (Court Doc. 1.) Respondent filed the instant motion to dismiss on January 16, 2009, and Petitioner filed oppositions on February 2 and 4, 2009, both appear to be an exact copy. (Court Docs. 17, 18, 20.) Respondent filed a reply on February 9, 2009. (Court Doc. 22.)
A. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254
Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. § 2244(d)(1)'s one-year limitations period and 28 U.S.C. § 2254(b)(1)(A)'s failure to exhaust the state court remedies. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Limitation Period for Filing a Petition for Writ of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on October 22, 2008, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, Section 2244, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...