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.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following convictions for rape, sexual penetration with a foreign object, oral copulation, and kidnapping with the intent to commit a sexual offense. Several sentencing enhancements were also found true. On February 23, 1998, Petitioner was sentenced to an indeterminate state prison term of twenty-five years to life, plus a consecutive determinate term of seventeen years. (Lodged Doc. No. 1.)
Petitioner filed a timely notice of appeal. On February 15, 2000, the California Court of Appeal, Fifth Appellate District, vacated the true findings with regard to the California Penal Code section 667.61(e)(4) special circumstances allegation and affirmed the conviction and judgment in all other respects. (Lodged Doc. No. 2.) An amended abstract of judgment issued on June 19, 2000. (Lodged Doc. 6.)
On June 2, 2000, the California Supreme Court denied review.
Petitioner filed four pro se state post-conviction collateral petitions for writ of habeas corpus relating to the pertinent judgment or claims. The first petition was filed in the Kern County Superior Court on May 24, 2001, and denied on June 21, 2001. (Lodged Doc. Nos. 5-6.)
The second petition was filed in the Kern County Superior Court on April 23, 2007, and denied on June 20, 2007. (Lodged Doc. Nos. 7-8.)
The third petition was filed in the California Court of Appeal, Fifth Appellate District on December 3, 2007. (Lodged Doc. No. 9.) The petition was denied on December 10, 2007. (Lodged Doc. No. 10.)
The fourth petition was filed in the California Supreme Court on January 23, 2008. (Lodged Doc. 11.) The petition was denied on August 13, 2008. (Lodged Doc. No. 12.)
The instant petition for writ of habeas corpus was filed on February 2, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on April 3, 2009. (Court Doc. 15.) Petitioner filed an opposition on June 10, 2009. (Court Doc. 19.)
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 (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 February 2, 2009, 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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In most cases, the limitation period begins running on the date that the petitioner's direct review became final.*fn1 Here, the California Supreme Court denied review on June 2, 2000. (Lodged Doc. No. 4.) The state appeal process became final on August 31, 2000, when the ninety day period for filing a petition for writ of certiorari expired. Supreme Court rule 13; Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999); Smith v. Bowersox, 159 F.3d 345 (8th Cir. 1998).*fn2 Therefore, the one year limitations period began on the following day, September 1, 2000, and absent tolling, was set to expire on August 31, 2001. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (holding that Rule 6(a) of the Federal Rules of Civil Procedure governs the calculation of statutory tolling applicable to the one year limitations period.)
C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2)
Title 28 U.S.C. § 2244(d)(2) states that the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one year limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held the statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and the period is tolled during the intervals between one state court's disposition of a habeas petition and the filing of a habeas petition at the next level of the state court system. 536 U.S. 214, 215 (2002); see also Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 120 S.Ct. 1846 (2000). Nevertheless, state petitions will only toll the one-year statute of limitations under § 2244(d)(2) if the state court explicitly states that the post-conviction petition was timely or was filed within a reasonable time under state law. Pace v. DiGuglielmo, 544 U.S. 408 (2005); Evans v. Chavis, 546 U.S. 189 (2006). Claims denied as untimely or determined by the federal courts to have been untimely in state court will not satisfy the requirements for statutory tolling. Id. Here, Petitioner filed four state court post-conviction collateral actions.
1. Expiration of Limitations Period Prior to Filing First State Petition As noted, the limitations period commenced running on September 1, 2000, and continued to run until May 24, 2001, the date the first petition was filed.*fn3 Consequently, 265 days of the initial one-year limitation period expired at the time the first state petition was filed.
2. Tolling for Period of Time First State Petition was Pending Petitioner is entitled to tolling for the entire time that the first state petition was pending in the Kern County Superior Court. Therefore, the first petition provides twenty-nine days tolling for the ...