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. 15]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In the instant petition, Petitioner challenges the Board of Parole Hearing's (hereinafter "Board") August 31, 2006, decision finding him unsuitable for parole.
On May 17, 2007, Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court.*fn1 (Exhibit 1, to Motion.) The petition was denied on October 29, 2007. (Exhibit 3, to Motion.) On February 12, 2008, Petitioner filed a petition in the California Court of Appeal, Second Appellate District. (Exhibit 4, to Motion.) That petition was denied on March 5, 2008. (Exhibit 5, to Motion) Petitioner then filed a petition in the California Supreme Court on April 15, 2008. (Exhibit 6, to Motion.) The petition was denied on September 17, 2008. (Exhibit 7, to Motion.)
Petitioner filed the federal petition on February 15, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on June 8, 2009. (Court Doc. 15.) Petitioner filed an opposition on June 30, 2009. (Court Doc. 16.) Respondent filed a reply to Petitioner's opposition on July 8, 2009. (Court Doc. 17.)
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. 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 (hereinafter "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, 11 ...