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. 13]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (CDCR) following his plea of guilty to assault with great bodily injury, kidnapping for robbery, and kidnapping for ransom. After admitting numerous sentencing enhancements, Petitioner was sentenced on the kidnapping convictions to two consecutive life terms with the possibility of parole, plus two years for the enhancements. The trial court imposed a five year concurrent sentence for the assault conviction.
On May 1, 2002, the California Court of Appeal, Fifth Appellate District, found the trial court erred in imposing a two year sentence for the enhancements instead of the agreed upon sentence of one year and four months. The case was remanded back to the trial court for the purpose of imposing a sentence consistent with the plea agreement or to allow Petitioner to withdraw his plea. The judgment was affirmed in all other respects.
Petitioner did not seek review in the California Supreme Court.
Petitioner filed two pro se state post-conviction collateral petitions. The first petition was filed in October 2, 2007, in the Fresno County Superior Court. The petition was denied on October 19, 2007.
The second state post-conviction collateral petition was filed in the California Court of Appeal, Fifth Appellate District. The petition was denied on June 19, 2009.
Petitioner filed the federal petition for writ of habeas corpus on February 16, 2010. Respondent filed the instant motion to dismiss on June 21, 2010. Petitioner did not file an opposition.
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 ...