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Shepard v. Gonzalez

May 20, 2010

DEANDRE SHEPARD, PETITIONER,
v.
F. GONZALEZ, RESPONDENT.



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. 14]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

RELEVANT HISTORY

On February 26, 2006, Petitioner was found guilty of possession of a weapon in violation of California Code of Regulations, title 15, section 3006, subdivision (a). Petitioner filed the instant petition for writ of habeas corpus on January 26, 2010. (Court Doc. 1.)

Petitioner filed an inmate appeal challenging the disciplinary action which was denied at the third and final level of review. (Exhibit 1, to Motion.)

On January 15, 2007, Petitioner filed a habeas corpus petition in the California superior court.*fn1 (Exhibit 2, to Motion.) The petition was denied on April 5, 2007. (Exhibit 3, to Motion.)

On March 31, 2008, Petitioner filed a habeas corpus petition in the California Court of Appeal, Third Appellate District. (Exhibit 4, to Motion.) The petition was denied April 10, 2008. (Exhibit 5, to Motion.)

On December 28, 2008, Petitioner filed a habeas corpus petition in the California Supreme Court. (Exhibit 6, to Motion.) The petition was denied on February 11, 2009. (Exhibit 7, to Motion.)

Petitioner filed the instant federal petition for writ of habeas corpus on November 14, 2009. (Court Doc. 1.) Respondent filed the instant motion to dismiss April 13, 2010. (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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