The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION AND DISMISSING THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. 2244(a) (Doc. 1)
ORDER DIRECTING THE CLERK TO CLOSE THE ACTION
Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on July 23 and 24, 2009, and on behalf of Respondent on June 9, 2010. Pending before the Court is Respondent's motion to dismiss the petition, filed on November 29, 2010. Petitioner filed opposition to the motion on December 8, 2010; no reply was filed.
I. Propriety of a Motion to Dismiss The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) is applicable to proceedings brought pursuant to § 2241. Habeas Rule 1(b). Habeas Rule 4 permits the filing of "an answer, motion, or other response," and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978); but see Lonchar v. Thomas, 517 U.S. 314, 325-26 (1996). In light of the broad language of Rule 4, this circuit has held that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present procedural issues such as failure to exhaust state remedies and procedural default. O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989). Analogously, a motion to dismiss is appropriate in the present proceeding brought pursuant to § 2241 because information concerning other District Courts' proceedings will be considered to determine the propriety of the petition.
Accordingly, the Court will proceed pursuant to Rule 4 to consider the Respondent's motion to dismiss.
At the time the petition was filed, Petitioner was incarcerated in the United States Penitentiary at Atwater, California (USP Atwater); he was later moved to the Federal Correctional Institution at Bennettsville, South Carolina (FCI Bennettsville). (Pet. 1.) Respondent concurs that the warden of USP Atwater, H. A. Rios, Jr., is the proper respondent for the purpose of the motion to dismiss, and Respondent does not contest venue. (Mot. 2:1-24.)
Petitioner was convicted of robbery in the United States District Court of Maryland, Northern Division, and he was previously convicted of criminal offenses in state court. (Pet. 2.) In the petition, Petitioner challenges the manner in which his federal sentence is being executed. Petitioner alleges that he began serving his federal sentence, was transferred to state custody, and was thereafter returned to federal custody to complete service of the federal sentence. Petitioner alleges that the marshals erred in returning Petitioner to federal custody, and because Petitioner was subjected to serving a sentence in a piecemeal fashion, Petitioner is entitled to release. (Pet. 2-6.)
The present petition is not the first petition filed with respect to the judgment pursuant to which Petitioner is detained. The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court will take judicial notice of the docket and documents filed in another federal court action that are pertinent to this proceeding.
The Court takes judicial notice of the docket and docketed orders in Nicholas J. Queen v. Donald Romine, Warden, 3:98-cv-02074-RPC-JVW, a proceeding in the United States District Court, Middle District of Pennsylvania. The full text of the Court's order of January 21, 2000, denying the petition for writ of habeas corpus is not available in the PACER electronic docket system. However, the docket reflects that Petitioner appealed from the judgment after an unsuccessful motion for a new trial that was construed as a motion for reconsideration. (Docs. 19-21, 23-29.) After the judgment was affirmed on appeal, Petitioner moved in the District Court for relief from the judgment pursuant to Fed. R. Civ. P. 60(b) on November 29, 2001. (Doc. 30.)
The documents subject to judicial notice establish that the District Court for the Middle District of Pennsylvania determined the legality of Petitioner's detention with respect to Petitioner's claim concerning a right to release based on the piecemeal service of his sentence. In his Rule 60(b) motion in the District Court for the Middle District of Pennsylvania, Petitioner attached portions of the court's order of January 21, 2000, in ...