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. 12]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On February 10, 2007, Petitioner was found guilty of a prison disciplinary for possession of a deadly weapon.*fn1 (Exhibit 1, to Respondent's Motion.) Petitioner challenged the disciplinary action through the administrative appeal process. Petitioner's appeal was denied at the Director's Level (the final level of review) on August 8, 2007. (Exhibit 2, to Motion.)
On December 6, 2007,*fn2 Petitioner filed a state petition for writ of habeas corpus in the Kings County Superior Court. (Exhibit 3, to Motion.) The petition was denied on January 2, 2008. (Exhibit 4, to Motion.)
On September 4, 2008, Petitioner filed a state petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. (Exhibit 5, to Motion.) The petition was denied on October 6, 2008. (Exhibit 6, to Motion.)
On February 9, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Exhibit 7, to Motion.) The petition was summarily denied on March 11, 2009. (Exhibit 8, to Motion.)
The instant federal petition for writ of habeas corpus was filed on February 22, 2010. Respondent filed the instant motion to dismiss on April 26, 2010. (Court Doc. 12.)
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 ...