The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a decision by the California Board of Prison Hearings (Board) that he is unsuitable for parole. Pending before the court is Respondents' motion to dismiss the petition on the grounds that the petition is untimely and unexhausted (Doc. 10). Petitioner filed an opposition to the motion (Doc. 11).
Petitioner was convicted in the Siskiyou County Superior Court of second degree murder in 1984, and was sentenced to 15 years to life, plus two for the use of a firearm. (Pet., Doc. 1, at 1). A subsequent parole consideration hearing for petitioner was held on November 17, 2006. At that hearing, the Board of Parole Hearings determined petitioner was not suitable for parole, and denied parole for three years. (See Pet., Ex. A). The Board's decision was rendered at the time of the hearing on November 17, 2006, but states it was not final until March 17, 2007. (Id.) Petitioner filed a habeas petition with the Siskiyou County Superior Court on April 16, 2007, which was denied on April 1, 2008. Apparently due to the delay in obtaining a ruling on his petition filed with the Siskiyou County Court, Petitioner filed his petition with the California Court of Appeal on November 14, 2007, which was summarily denied on April 3, 2008. His final state petition was filed with the California Supreme Court on April 24, 2008, which was denied on September 17, 2008, with a citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995). Petitioner filed the instant action on August 3, 2009.
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. The petitioner bears the burden of showing that he has exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
A. STATUTE OF LIMITATIONS
Respondent brings this motion to dismiss Petitioner's federal habeas corpus petition as filed beyond the one-year statute of limitations, pursuant 28 U.S.C. § 2244(d). Respondent argues the statute of limitations began running following the Board's November 18, 2006, decision, which expired well before the petition was filed in this case on August 3, 2009.
Petitioner argues the Board's decision was not final until March 17, 2007, and the statute of limitations did not start to run until then.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. See Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). In this case, the petition was filed on May 29, 2008, and therefore, it is subject to the provisions of AEDPA. AEDPA imposes a one-year statute of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2254(d) reads:
(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 was asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...