The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in the Kern County Superior Court, Petitioner was convicted of four counts of committing a lewd act against a minor under age 14 (Cal. Penal Code*fn1 § 288(a)); exhibiting harmful material to a minor (§ 288.2(a)); persuading a minor to be photographed while engaging in sexual conduct (§ 311.4(c)); annoying or molesting a child under age 18 (§ 647.6); and committing a lewd act against a [second] child under age 14 (§ 288(a)). It was also found true that Petitioner committed lewd acts against more than one victim (§ 667.61(e)(5)). Petitioner was sentenced to a life term with the possibility of parole after fifteen years, plus a ten-year determinate term.
On March 3, 2008, the California Court of Appeal affirmed the judgment.
The California Supreme Court denied the petition for review on June 11, 2008. Petitioner did not file any other petitions for post-conviction relief in the state courts. Petitioner filed the instant federal petition for writ of habeas corpus on February 1, 2010. Respondent filed the instant motion to dismiss on June 9, 2010. Petitioner filed an opposition on September 13, 2010.
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 ...