The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 10, 1) ORDER DISMISSING THE PETITION AS SUCCESSIVE PURSUANT TO 28 U.S.C. § 2244(b) (Doc. 1), DISMISSING PETITIONER'S MOTION FOR EVIDENTIARY HEARING AS MOOT (Doc. 16), AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE ACTION
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 to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in signed writings filed by Petitioner on March 8, 2010 (doc. 3), and on behalf of Respondent on December 10, 2010 (doc. 9). Pending before the Court is Respondent's motion to dismiss the petition, which was filed on January 24, 2011. Petitioner filed an opposition to the motion on February 11, 2011. Respondent filed a reply on February 18, 2011.
I. Proceeding by a Motion to Dismiss A federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).
Respondent has filed a motion to dismiss the petition on the ground that this Court lacks subject matter jurisdiction over the petition because it is successive and thus is barred by 28 U.S.C. § 2244.
Rule 4 of the Rules Governing Section 2254 Cases in the District Courts (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.
Here, Respondent's motion to dismiss is based on lack of subject matter jurisdiction. Respondent's motion is similar in procedural posture to a motion to dismiss for failure to exhaust state remedies or for state procedural default. Further, although the motion is opposed, the motion does not raise material factual disputes. Finally, Respondent has not yet filed a formal answer.
The Court therefore exercises its discretion to review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner alleges that he is serving a sentence of fifty-five (55) years to life imposed by the Stanislaus County Superior Court upon Petitioner's conviction on August 20, 1999, of attempted burglary with enhancements for prior convictions. (Pet. 1.) Petitioner challenges his sentence on the ground that it was unauthorized, illegal, and violated Petitioner's right to due process of law under the Fourteenth Amendment. He further argues that judicial error violated the protection against double jeopardy and his rights under the Equal Protection Clause, and the ineffective assistance of his trial and appellate counsel violated Petitioner's Fifth and Fourteenth Amendment rights. (Pet. 5-6.)
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 its own dockets and notes that the present petition is not the first petition filed with respect to the judgment pursuant to which Petitioner is detained.
On March 24, 2006, a habeas petition challenging Petitioner's Stanislaus County conviction and sentence was denied on the merits by this Court in Schmidt v. Scribner, 03-cv-6124-AWI-DLB-HC. (Docs. 22, 24) The Court denied the petition on the merits and entered judgment for the Respondent. (Docs. 22, 24; 24, 2; 25.)
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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. ...