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. 11]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On June 28, 2006, a jury found Petitioner guilty of one count of misdemeanor exposing his private parts in a public part in violation of California Penal Code section 314(1). (CT 107.) On July 27, 2006, Petitioner was sentenced to time already served. (Sentencing Transcript, at 173-174.) Petitioner is required to register as a sex offender under California Penal Code section 290. (Id.)
Petitioner filed an appeal to the appellate division of the Kings County Superior Court pursuant to People v. Wende, 25 Cal.3d 436 (1979), asking the court to review the record for error. (Lodged Doc. No. 1.) Petitioner augmented the record with portions of the trial transcripts. The appellate division affirmed the judgment. (Lodged Doc. No. 2.)
Petitioner filed a petition for review in the California Supreme Court on July 30, 2007. (Lodged Doc. No. 3.) The petition was denied on October 10, 2007. (Lodged Doc. No. 4.) Thereafter, Petitioner filed several collateral actions in the state courts.*fn1 (Lodged Doc. Nos. 5-6.)
On May 22, 2007, Petitioner filed a petition for writ of habeas corpus in the state superior court. (Lodged Doc. No. 7.) The petition was denied on July 12, 2007. (Lodged Doc. No. 8.)
On July 26, 2007, Petitioner filed a petition for writ of habeas corpus in the state appellate court. (Lodged Doc. No. 9.) The petition was denied on August 10, 2007. (Lodged Doc. No. 10.)
Petitioner then filed a petition for writ of habeas corpus in the state supreme court. (Lodged Doc. No. 11.) The court denied the petition on October 10, 2007. (Lodged Doc. No. 12.)
Petitioner filed the instant petition for writ of habeas corpus on October 20, 2009. (Court Doc. 1.) Respondent filed a motion to dismiss on April 19, 2010, and Petitioner filed an opposition on April 28, 2010. (Court Docs. 11, 14.)
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 ...