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. 18]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On June 18, 1998, Petitioner was convicted of first degree burglary. The jury also found true the allegation that Petitioner suffered three prior convictions. Petitioner was sentenced to an indeterminate state prison term of 25 years to life, plus a consecutive five-year enhancement, and a concurrent one-year enhancement. (Lodged Doc. Nos. 1-2.)
The California Court of Appeal, Fifth Appellate District affirmed the judgment on January 28, 2000. (Lodged Doc. No. 2.) The California Supreme Court denied review on April 26, 2000. (Lodged Doc. Nos. 3-4.)
Petitioner subsequently filed three state-post conviction collateral challenges.*fn1 The first petition was filed on November 17, 2008, in the Madera County Superior Court. (Lodged Doc. No. 5.) On December 12, 2008, the court denied the petition citing In re Clark, 5 Cal.4th 750, 765 (1993). (Lodged Doc. No. 6.)
The second petition was filed on March 31, 2009, in the Madera County Superior Court. (Lodged Doc. No. 7.) The petition was denied on April 8, 2009. (Lodged Doc. No. 8.)
The third petition for writ of habeas corpus was filed in the Madera County Superior Court on May 18, 2009. (Lodged Doc. No. 9.) The petition was denied on June 2, 2009.
Petitioner filed the instant federal petition for writ of habeas corpus on April 15, 2009. (Court Doc. 1.)
Respondent filed a motion to dismiss the petition as untimely on August 17, 2009. (Court Doc. 18.) Petitioner filed an opposition on September 30, 2009. (Court Doc. 28.)
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 April 15, 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 ...