The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on March 10, 2009, and challenges the Board of Parole Hearings' (hereinafter "Board") 2005 decision finding him unsuitable for parole.
On July 3, 2006, Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court.*fn1 (Exhibit A, to State Court Records.) The petition was denied on August 3, 2007. (Exhibit B, to State Court Records.)
On October 5, 2007, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. (Exhibit C, to State Court Records.) The petition was denied on November 8, 2007. (Exhibit D, to State Court Records.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on June 11, 2008. (Exhibits E & F, to State Court Records.)
Petitioner filed the instant federal petition for writ of habeas corpus on March 8, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss the petition as untimely on June 9, 2009. (Court Doc. 12.) Petitioner filed an opposition on July 2, 2009. (Court Doc. 15.)
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 ...