The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 11]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted of second degree murder. After finding a number of sentencing enhancements to be true, Petitioner was sentenced to an indeterminate term of thirty years to life. (Lodged Doc. No. 1.)
On August 24, 1998, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 2.) The California Supreme Court denied review on November 4, 1998. (Lodged Doc. Nos. 3-4.)
Petitioner subsequently filed three pro se state post-conviction collateral petitions challenging the pertinent judgment.
The first petition was filed in the Fresno County Superior Court on May 20, 2008. (Lodged Doc. No. 5.) The petition was denied on June 20, 2008. (Lodged Doc. No. 6.)
The second petition was filed on July 15, 2008, in the California Court of Appeal, Fifth Appellate District. (Lodged Doc. No. 7.) The petition was denied on July 24, 2008. (Lodged Doc. No. 8.)
The third petition was filed in the California Supreme Court on August 13, 2008. (Lodged Doc. No. 9.) The petition was denied on February 11, 2009. (Lodged Doc. No. 10.)
Petitioner filed the instant federal petition on April 8, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on June 10, 2009. (Court Doc. 11.) Petitioner filed an opposition on July 1, 2009, and Respondent filed a timely reply on September 8, 2009. (Court Docs. 13, 18.)
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 ...