The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 13, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION AS UNTIMELY
(DOC. 1), DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY,
AND DIRECT THE CLERK TO CLOSE
OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se 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 the Respondent's motion to dismiss the petition as untimely, which was filed on February 14, 2011. Paper documents were lodged in support of the motion. Petitioner filed an opposition to the motion on April 6, 2011, but no reply was filed.
I. Proceeding by a Motion to Dismiss
Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1).
Rule 4 of the Rules Governing Section 2254 Cases in the United States 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.
In this case, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are mainly to be found in copies of the official records of state 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 a motion to dismiss for failure to exhaust state remedies or for state procedural default, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner alleged in the petition that he was an inmate of the Pleasant Valley State Prison (PVSP) located within the Eastern District of California, serving a sentence of fifteen (15) years to life imposed by the Fresno County Superior Court on December 1, 2006, upon Petitioner's conviction of second degree murder in violation of Cal. Pen. Code § 187. (Pet. 1.) Petitioner challenges his conviction, claiming 1) his trial counsel rendered ineffective assistance in violation of Petitioner's Sixth and Fourteenth Amendment rights by permitting improper instructions concerning malice, which resulted in a lowering of the prosecutor's burden of proof; and 2) the trial court improperly instructed the jury with respect to malice and general intent (CALJIC nos. 1.22 and 3.30). (Id. at 5, 7.) Petitioner seeks a new trial, or, in the alternative, an evidentiary hearing to investigate his claim that trial counsel was ineffective. (Id. at 15.)
The pertinent state court proceedings are briefly summarized below.
On December 1, 2006, Petitioner was sentenced to an indeterminate term of fifteen (15) years to life pursuant to Petitioner's conviction of second degree murder on June 8, 2006.
In an opinion filed on February 29, 2008, in case number F051859, the Court of Appeal of the State of California, Fifth Appellate District (DCA) affirmed the judgment. (L.D. 2.)
A petition for review filed on behalf of Petitioner on or about April 10, 2008, in case number S162499 was summarily denied by the California Supreme Court on June 11, 2008. (L.D. 4.)
On January 29, 2009, *fn2 Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court, which was denied in a decision filed on March 4, 2009. (L.D. 5-6.)
On May 22, 2009, *fn3 Petitioner filed a petition for writ of habeas corpus in the DCA, which was summarily denied on July 23, 2009. (L.D. 7-8.)
On or about November 10, 2009, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (L.D. 9.) Next to the signature on page six of the petition form appears the date of November 10, 2009. Respondent suggests using the date of signing to give Petitioner the benefit of the mailbox rule. (Mot., 5:24-28.) The Court considers the date of signing, November 10, 2009, to be the earliest possible date that Petitioner could have submitted his petition to the prison authorities for mailing.
On May 12, 2010, the California Supreme Court summarily denied the petition. (L.D. 10.)
The petition filed in this action was signed by Petitioner on November 18, 2010, and provides as follows:
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on 11/18/10 (month, date, year).
Thus, applying the mailbox rule, the court concludes that Petitioner filed the petition before the Court on November 18, 2010.
III. The Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA applies to all petitions for writ of habeas corpus filed after the enactment of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). Petitioner filed his original petition for writ of habeas corpus on November 18, 2010. Thus, the AEDPA applies to the petition.
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). As amended, subdivision (d) reads:
(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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...