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Lopez v. Haviland

July 14, 2009

JAVIER PEREZ LOPEZ, PETITIONER,
v.
JOHN W. HAVILAND, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE

[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. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.

RELEVANT HISTORY

Petitioner pled guilty to false imprisonment with the intent to evade arrest or to use the victim as a shield, making a criminal threat, and three counts of robbery. On May 1, 2006, Petitioner was sentenced to a determinate term of 18 years-which included several sentencing enhancements. (Lodged Doc. No. 1.)

On December 27, 2006, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 2.) Petitioner did not seek review in the California Supreme Court.

Petitioner filed a pro se state post-conviction collateral petition in the California Supreme Court on December 11, 2007, which was denied on June 11, 2008. (Lodged Doc. Nos. 3-4.)

Petitioner filed the instant federal petition for writ of habeas corpus on March 2, 2009. (Court Doc. 1.)

Respondent filed the instant motion to dismiss the petition as untimely on May 29, 2009. (Court Doc. 17.) Petitioner did not file an opposition.

DISCUSSION

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 ...


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