The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DOC. 16) AND DISMISSING THE ACTION WITH PREJUDICE ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment.*fn1 Pending before the Court is Respondent's motion to dismiss the petition for untimeliness, which was filed on December 3, 2009, along with lodged documents. Petitioner filed opposition on March 15, 2010. Respondent filed a reply on May 3, 2010, and lodged an additional document. Pursuant to Local Rule 230(l), the motion is submitted for decision without oral argument.
I. Motion to Dismiss for Untimeliness
Respondent has filed a motion to dismiss the petition on the ground that the petition was untimely filed.
Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."
In the Ninth Circuit, respondents have been allowed to file a motion to dismiss pursuant to Rule 4 instead of an answer if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated 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 a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a 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 may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss addresses the timing of the filing of the petition. The material facts pertinent to the motion are mainly to be found in copies of the official records of state judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer and because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
II. The Limitations Period
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Petitioner filed his petition for writ of habeas corpus on July 9, 2008. Thus, the AEDPA applies to the petition.
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). It further identifies the pendency of some proceedings for collateral review as a basis for tolling the running of the period. As amended, subdivision (d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of ---
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Pursuant to § 2244(d)(1)(A), the limitation period runs from the date on which the judgment became final.
Here, the parties disagree on when direct review concluded. Further, Petitioner asserts equitable defenses to the running of the statute, argues that state rulings could not serve as adequate and independent procedural grounds, and contends that the decision in Cunningham v. California, 549 U.S. 270 (2007) constituted a new rule of law.
An abstract of judgment of the Superior Court of the County of Tulare in case number Cr-F-01-75146-2, filed on January 18, 2002, reflects that upon his pleas of no contest entered on October 30, 2001, Petitioner was convicted of voluntary manslaughter in violation of Cal. Pen. Code § 192(a) and assault with a semi-automatic firearm in violation of Cal. Pen. Code § 245(b); he was also subject to a sentence enhancement pursuant to Cal. Pen. Code § 12022.5(a). (LD 1.) On January 18, 2002, Petitioner was sentenced to an upper term of eleven years on the manslaughter, a lower term of two years on the assault, and four years on the enhancement; his total determinate term was seventeen years. (Id.)
Petitioner appealed to the Court of Appeal of the State of California, Fifth Appellate District (DCA), which, in an opinion filed on March 18, 2003, affirmed the judgment but determined that the record suggested that the sentencing court did not appreciate its discretionary power to grant probation to Petitioner. Thus, the DCA remanded the case for resentencing to permit the sentencing court to consider whether Petitioner should be granted probation. (LD 2.) There is no evidence suggesting that Petitioner sought review of the DCA's opinion in the California Supreme Court.
An amended abstract of judgment reflects that resentencing occurred in compliance with the opinion of the DCA, and the Tulare County Superior Court again sentenced Petitioner to a determinate state prison term of seventeen years on November 5, 2003. (LD 3.)
Petitioner filed an appeal, and the DCA affirmed the judgment in case number F44312 in an opinion filed on March 16, 2005. (LD 4.)
A petition for review was denied by the California Supreme Court by order filed June 8, 2005, in case number S133265. The denial was without prejudice to any relief to which Petitioner might be entitled after the Supreme Court determined "in People v. Black S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) __ U.S. __ 124 S.Ct. 2531, on California law." (LD 5.)*fn2
There is no evidence before the Court suggesting that Petitioner sought certiorari.
Petitioner filed in the state courts three collateral, post-conviction petitions with respect ...