The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TODISMISS [Doc. 15]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In the instant petition for writ of habeas corpus on January 18, 2011, Petitioner challenges a 2009 prison disciplinary decision as a violation of his federal due process rights.
Petitioner filed an administrative appeal at the first level of review, but it was screened out as incomplete and again as untimely. (Ex. 1 at Exs. J, M.)
On January 20, 2010, Petitioner signed a petition for writ of habeas corpus in the Kern County Superior Court claiming that he was denied due process at the prison disciplinary hearing related to the charge of indecent exposure. The superior court denied the petition because Petitioner failed to exhaust his administrative remedies, citing In re Dexter, 25 Cal.3d 921, 925 (1979); In re Muzalski, 52 Cal.3d 500, 508 (1975); Wright v. State, 122 Cal.App.4th 659 (2004). Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal. The petition was summarily denied. Petitioner finally filed a petition for writ of habeas corpus in the California Supreme Court. The Court denied the petition, citing In re Dexter, 25 Cal.3d 921.
Petitioner filed the instant petition for writ of habeas corpus on January 28, 2011. On April 12, 2011, Respondent filed a motion to dismiss the petition. Petitioner filed an opposition on May 9, 2011, and Respondent filed a reply this same date.
I. 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 failure to exhaust the administrative remedies and procedural default. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
II. Exhaustion of Administrative Remedies
Prisoner's in state custody who wish to challenge collaterally in federal court either the fact or length of their confinement by a petition for writ of habeas corpus are first required to exhaust state judicial remedies by presenting the highest state available with a fair opportunity to rule on the merits of each and every issue they seek to raise in federal court. 28 U.S.C. § 2254(b), (c), Granberry v. Greer, 481 U.S. 129, 134 (1987); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). Petitioner bears the ...