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. 12]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
In the instant petition, Petitioner challenges the Board of Parole Hearings' 2006 decision finding him unsuitable for release.
Petitioner filed a state petition for writ of habeas corpus in the Los Angeles County Superior Court on July 31, 2008.*fn2 (Motion, Exhibit 1.) The superior court denied the petition in a reasoned decision on October 29, 2008. (Id., Exhibit 2.)
On December 9, 2008, Petitioner filed a state court petition in the California Court of Appeal, Second Appellate District. (Id., Exhibit 3.) The petition was summarily denied on February 11, 2009. (Id., Exhibit 4.)
On March 6, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Id., Exhibit 5.) The petition was summarily denied on August 12, 2009. (Id., Exhibit 6.)
Petitioner filed the instant petition for writ of habeas corpus on October 5, 2009. (Court Doc. 1.) Respondent filed a motion to dismiss on January 7, 2010. (Court Doc. 10.) Petitioner filed an opposition on January 25, 2010, and Respondent filed a reply on January 29, 2010. (Court Docs. 11, 12.)
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 ...