The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 14, 1, 8)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss the petition, which was filed on March 25, 2011, and served on Petitioner on the same date. (Doc. 14, 6.) No opposition to the motion to dismiss was filed.
I. Proceeding by Motion to Dismiss Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."
The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated 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 a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a 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 may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1) as well as a lack of exhaustion of state court remedies. The material facts pertinent to the motion are mainly to be found in copies of the official records of state administrative and judicial proceedings which have been provided by Respondent and Petitioner, and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and because Respondent's motion to dismiss is similar in procedural standing to other motions to dismiss for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Here, Petitioner alleges that he was an inmate of the California Correctional Institution at Tehachapi, California, suffering a forfeiture of sixty (60) days of time credit imposed after Petitioner was adjudicated guilty of committing a disciplinary violation of being disrespectful toward staff. (Pet. 1.) Petitioner argues that in the course of the disciplinary proceedings, he suffered violations of his rights to due process and equal protection of the laws guaranteed by the Fourteenth Amendment. (Pet. 4.)
By order dated January 27, 2011, the Court severed an additional claim in the petition that concerned a separate and later disciplinary proceeding. (Doc. 8.) That claim was refiled in a separate case.
Thus, the present petition concerns the earlier proceeding referred to in the petition, namely, IAB case no. 0813485, local log. no. CCI-08-02744. (Pet. 9; Doc. 8, 10:23-28-11:1.)
Respondent correctly contends that the state court proceedings referred to by Petitioner in his petition do not relate to the disciplinary finding concerning disrespect for staff; rather, they pertain to a later disciplinary violation in December 2008. (Mot., Ex. 4, doc. 14-1, 36-37; Ex. 5, doc. 14-1, 38-52; Ex. 6, doc. 14-1, 53-54; Ex. 7, doc. 14-1, 55-56.) Petitioner failed to submit any documentation of exhaustion of the pertinent claim in response to the motion to dismiss. Thus, record before the Court does not demonstrate exhaustion of state court remedies.
III. The Limitations Period
Respondent argues that the petition is untimely because Petitioner filed his petition in this Court outside of the one-year limitation period provided for in 28 U.S.C. § 2244(d).
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). It further identifies the pendency of some proceedings for collateral review as a basis for tolling the running of the period. As amended, subdivision (d) provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of ---
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...