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Colbert v. Carrasco

August 4, 2010

GEORGE K. COLBERT, PETITIONER,
v.
M. CARRASCO, RESPONDENT.



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. 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

On October 2, 2008, Petitioner was found guilty of violating of violating California Code of Regulations, title 3005(c)-battery on a peace officer and assessed a credit forfeiture of 150 days.

On March 24, 2009, Petitioner filed a state petition for writ of habeas corpus in the California Superior Court for the County of Kern. On May 26, 2009, the superior court denied the petition in a reasoned decision.

Petitioner then filed a state petition in the California Court of Appeal, Fifth Appellate District, which was denied on July 2, 2009, for lack of available documentary evidence.

Petitioner also filed a state petition in the California Supreme Court, which was summarily denied.

Petitioner filed the instant federal petition for writ of habeas corpus on October 20, 2009.

Respondent filed the instant motion to dismiss on June 15, 2010, and Petitioner filed an opposition on July 22, 2010.

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 ...


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