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Fierro v. Hartly

December 1, 2009

GILBERT FIERRO, PETITIONER,
v.
JAMES D. HARTLY, RESPONDENT.



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. 10]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

In January 2007, the Board of Parole Hearings found Petitioner unsuitable for release on parole. (Exhibit A, to Motion, Transcript at 68.)

On March 10, 2008, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court challenging the denial of parole. (Exhibit B, to Motion; Court Doc. 12, Exhibit 1.) The petition was denied on May 27, 2008. (Id.)

On August 18, 2008, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. (Exhibit C, to Motion; Court Doc. 12, Exhibit 2.) The petition was summarily denied on August 28, 2008. (Id.)

On October 17, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Exhibit D, to Motion; Court Doc. 12, Exhibit 3.) On April 1, 2009, the petition was summarily denied. (Id.)

Petitioner filed the instant federal petition for writ of habeas corpus on July 5, 2009. (Court Doc. 1.)

On October 2, 2009, Respondent filed the instant motion to dismiss October 2, 2009. (Court Doc. 10.) Petitioner filed an opposition on November 4, 2009. (Court Doc. 12.)

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 ...


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