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Myers v. Hartley

March 3, 2010

TERRY MYERS, PETITIONER,
v.
J. HARTLEY, WARDEN RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 14]

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 the instant petition, Petitioner challenges the Board of Parole Hearings' (Board) September 27, 2006 decision finding him unsuitable for release.

On November 7, 2008, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court challenging the 2007 Board decision. (Exhibit 1, to Motion.) The petition was denied on December 2, 2008. (Exhibit 2, to Motion.)

In December 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. (Exhibit 3, to Motion.) The petition was denied on January 8, 2009. (Exhibit 4, to Motion.)

On February 22, 2009, Petitioner filed a petition in the California Supreme Court. (Exhibit 5, to Motion.) The petition was denied on July 15, 2009. (Exhibit 6, to Motion.)

Petitioner filed the instant petition on September 4, 2009. On January 11, 2010, Respondent filed the instant motion to dismiss. (Court Doc. 14.) Petitioner did not file an opposition.

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 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 ...


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