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Johnson v. Lea

July 13, 2010

JAMES M. JOHNSON, PETITIONER,
v.
MELISSA LEA, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING PETITIONER'S REQUEST TO FILE SURREPLY [Docs. 27 & 28] 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.

BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his conviction of sodomy and four counts of rape and lewd and lascivious acts upon a child. Petitioner was sentenced to a determinate state prison term of thirty-six years and eight months.

On February 19, 2003, the California Court of Appeal, Fifth Appellate District, reversed one of the convictions for lewd and lascivious acts and remanded the matter for re-sentencing. The California Supreme Court denied review on April 30, 2003.

On September 9, 2004, Petitioner was resentenced to a determinate state prison term of twenty-four years.*fn2 On October 20, 2005, the California Court of Appeal, Fifth Appellate District, affirmed the conviction. The California Supreme Court denied review on January 4, 2006.

Thereafter, Petitioner filed twelve pro se state post-conviction collateral petitions challenging the pertinent judgment. The first petition was filed on July 31, 2006*fn3 , in the Fresno County Superior Court. The petition was denied on August 11, 2006.

The second petition was filed on September 4, 2006, also in the Fresno County Superior Court. The petition was denied on September 15, 2006.

The third petition was filed in the California Supreme Court on September 4, 2006, and denied on September 12, 2007.

The fourth petition was filed on September 23, 2006, in the California Court of Appeal, Fifth Appellate District. The petition was denied on October 5, 2006.

The fifth petition for writ of habeas corpus was filed on October 10, 2006, in the California Supreme Court. The petition was denied on September 12, 2007.

The sixth petition was filed on May 28, 2007, in the Fresno County Superior Court. That petition was denied on June 18, 2007.

The seventh petition was filed on December 4, 2007, in the California Court of Appeal, Fifth Appellate District. The petition was denied on December 14, 2007.

The eighth petition was filed on December 26, 2007, in the California Supreme Court. The petition was denied on June 11, 2008.

The ninth petition was filed on December 8, 2008, in the Fresno County Superior Court. The petition was denied on December 19, 2008.

The tenth petition was filed on December 8, 2008, in the Fresno County Superior Court. The petition was denied on January 15, 2009.

The eleventh petition was filed on February 17, 2009, in the California Court of Appeal, Fifth Appellate District. The petition was denied on February 27, 2009.

The twelfth petition was filed on March 13, 2009, in the California Supreme Court. The petition was denied on August 12, 2009.

The instant petition for writ of habeas corpus was filed on October 7, 2009. Respondent filed the instant motion to dismiss on December 28, 2009. Petitioner filed an opposition on March 30, 2010. Respondent filed a reply on June 2, 2010. On June 28, 2010, Petitioner filed a request to file a surreply and the surreply to Respondent's reply. Although the Federal Rules of Civil Procedure nor the Local Rules of this Court specifically authorize a surreply, in the interests of justice, the Court grants Petitioner's request to file a surreply which will be duly considered herein.

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 dismiss pursuant to its authority under Rule 4.

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus On April 24, 1996, Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on October 7, 2009, and thus, it is subject to the provisions of the AEDPA.

The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, Section 2244, subdivision (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 ...


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