The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE AS UNTIMELY, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.
On April 8, 2004, Petitioner was convicted of voluntary manslaughter in the California Superior Court, County of Kern. (Lodged Doc. No. 1.)
Petitioner filed a timely notice of appeal to the California Court of Appeal, Fifth Appellate District. The Court of Appeal affirmed the judgment on March 23, 2006. (Lodged Doc. No. 2.) On July 12, 2006, the California Supreme Court denied review. (Lodged Doc. Nos. 3 & 4.)
Petitioner subsequently filed three pro se state post-conviction collateral petitions.*fn2 The first petition was filed on September 5, 2007 in the Kern County Superior Court. (Lodged Doc. No. 5.) The petition was denied on November 13, 2007. (Lodged Doc. No. 6.)
The second petition for writ of habeas corpus was filed in the California Court of Appeal, Fifth Appellate District on December 22, 2007. (Lodged Doc. No. 7.) The petition was denied on May 15, 2008. (Lodged Doc. No. 8.)
The third and final petition was filed in the California Supreme Court on August 3, 2008, and denied on February 11, 2009. (Lodged Doc. Nos. 9 & 10.)
Petitioner filed the instant federal petition for writ of habeas corpus on February 28, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss on July 27, 2009. (Court Doc. 17.) Petitioner filed an opposition on November 25, 2009, and Respondent filed a reply on December 14, 2009. (Court Docs. 30, 31.)
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 28, 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 ...