The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CASE, DENYING PETITIONER'S MOTION FOR JUDGMENT, GRANTING RESPONDENT'S MOTION TO DISMISS, AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE [Docs. 11, 12]
Petitioner is a state prisoner proceeding pro se 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. Local Rule 305(b).
Petitioner filed the instant petition for writ of habeas corpus on November 16, 2009. (Court Doc. 1.) Petitioner raises several challenges to his 2006 conviction for corporal injury to spouse and criminal threats.
On April 7, 2010, Petitioner filed a motion for entry of judgment.
On May 28, 2010, Respondent filed a motion to dismiss the petition as successive under 28 U.S.C. § 2244(b)(3)(A). Petitioner did not file an opposition to Respondent's motion.
I. Motion for Entry of Default Judgment/Discharge of Order to Show Cause
In his motion, Petitioner requests judgment on the pleadings and relief prayed for in his petition because Respondent initially failed to respond to the Court's December 15, 2009, order.
Although Petitioner is correct that the Court issued an Order to Show Cause on Respondent for failing to respond to the Court's December 15, 2009. Respondent filed a timely response to the Order and a subsequent motion to dismiss in which counsel stated the following:
It appears the undersigned was made promptly aware upon this Court's initial service, and that the undersigned removed the case from normal processing due to the jurisdictional issued presented by the prior federal Petition. The undersigned's best recollection is that a motion to dismiss was intended then, but that subsequently the matter escaped the undersigned's attention. Further, because the undersigned failed to make an Appearance, this Court's subsequent orders were not received by the undersigned. The entire responsibility for the subsequent lack of response falls squarely on the undersigned. As previously stated, the failing was unintentional. Moreover, because the lack of jurisdiction is fatal, and moreover Epperson has had the opportunity to respond with necessary proof, it cannot be that he has been prejudiced. Nonetheless, the undersigned sincerely apologizes to the Court for any inconvenience, and likely frustration.
The Court finds that Respondent's counsel failure to respond to the Court's order was not intentional, and the Court will therefore discharge the order to show cause.
II. 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 ...