The opinion of the court was delivered by: Sandra M. Snyder 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.
On November 16, 2008, Petitioner's cellmate indicated that Hudson strangled him. Petitioner admitted to prison officials that he "chocked [his cellmate] until he went unconscious" to obtain a cell transfer. Petition, Exhibit 7. On January 17, 2009, Petitioner was found guilty of a rule violation for attempted homicide on an inmate. Id.
Petitioner appealed the disciplinary action through the administrative process on the ground that he was improperly denied witnesses at his hearing. Petition, Exhibit 5. Petitioner's administrative appeal was granted at the third level of review, and the disciplinary action was dismissed and ordered to be re-issued and re-heard in compliance with the applicable regulations permitting him to call witnesses. Id.
On November 11, 2009, the rules violation was reheard and Petitioner was allowed to call witnesses. Petition, Exhibit 9. He was again found guilty of the rules violation. Id.
On March 10, 2009, Petitioner filed a state petition for writ of habeas corpus challenging the January 17, 2009 disciplinary action in the Fresno County Superior Court. (Exhibit 1, to Respondent's Motion.) The petition was denied on April 15, 2009, because Petitioner failed to provide legible copies of the disciplinary hearing record. (Exhibit 2, to Motion.) On May 7, 2009, Petitioner filed a petition for writ of mandate in the California Court of Appeal, Fifth Appellate District, which was summarily denied on May 15, 2009. (Exhibits 3 & 4, to Motion.)
Petitioner then filed an original petition for writ of mandate in the California Supreme Court, which was transferred back to the court of appeal. (Exhibit 5, to Motion.) The state appellate court denied the second petition for writ of mandate on July 23, 2009. (Exhibit 6, to Motion.) On August 21, 2009, Petitioner filed a petition for review in the California Supreme Court, and the petition was denied on October 28, 2009. (Exhibits 7 & 8, to Motion.)
Petitioner filed the instant petition for writ of habeas corpus on January 11, 2010 in the United States District Court for the Central District of California. (Court Doc. 1.) The petition was transferred to this Court on January 21, 2010. (Court Doc. 3.) Respondent filed the instant motion to dismiss on April 20, 2010. Petitioner filed an opposition on May 3, 2010. (Court Docs. 17, 19.) Respondent filed a reply on May 10, 2010. (Court Doc. 20.)
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 ...