The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In the instant petition, Petitioner challenges the Board of Parole Hearings' (Board) November 27, 2007 decision finding him unsuitable for release. More specifically, Petitioner contends that his federal due process rights were violated by not allowing him to speak at the 2007 hearing, and there is not some evidence to support the Board's decision.
On December 4, 2008,*fn1 Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court raising the same challenges as the instant petition. (Exhibit 1, to Motion.) The superior court denied the petition in a reasoned decision on January 29, 2009. (Exhibit 2, to Motion.)
Petitioner then filed a petition in the California Court of Appeal, Fourth Appellate District on February 10, 2009. (Exhibit 3, to Motion.) The appellate court denied the petition in a reasoned decision on March 23, 2009. (Exhibit 4, to Motion.) Petitioner then proceeded to the California Supreme Court, which denied the petition without comment on October 22, 2009. (Exhibits 5 & 6, to Motion.)
Petitioner filed the instant petition for writ of habeas corpus on November 18, 2009. (Court Doc. 1.) On January 29, 2010, Respondent filed a motion to dismiss Petitioner's first challenge to his removal from the Board hearing. (Court Doc. 11.) On February 19, 2010, Petitioner filed an opposition, and Respondent filed a reply on February 25, 2010. (Court Docs. 12, 13.)
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 ...