The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING RESPONDENT'S
MOTION TO DISMISS, DISMISSING
PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE, DIRECTING CLERK
OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE A CERTIFICATE OF
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Petitioner pled nolo contendere to voluntary manslaughter with a firearm enhancement. On December 21, 2005, he was sentenced to a determinate state prison term of fifteen years. Petitioner did not appeal his sentence.
Petitioner subsequently filed three pro se state post-conviction collateral challenges. The first petition was filed on October 13, 2009, in the Kern County Superior Court. The petition was denied on December 23, 2009.
The second petition for writ of habeas corpus was filed on January 20, 2010, in the California Court of Appeal, Fifth Appellate District. The petition was denied on March 16, 2010.
The third petition for writ of habeas corpus was filed on March 30, 2010, in the California Supreme Court. The petition was denied on November 10, 2010.
The instant petition for writ of habeas corpus was filed on December 15, 2010.
On April 12, 2011, Respondent filed the instant motion to dismiss. Petitioner filed an opposition on May 2, 2011, and Respondent filed a reply on May 6, 2011.
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 violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period. Therefore, the Court will review Respondent's motion to ...