The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION ) (DOC. 14)
ORDER DISMISSING THE PETITION AS UNTIMELY
(DOC. 1)ORDER DIRECTING THE ENTRY OF
JUDGMENT FOR RESPONDENT
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
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. 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 their consent in writings signed by the parties or their representatives and filed by Petitioner on January 10, 2011, and on behalf of Respondent on February 10, 2011.
Pending before the Court is Respondent's motion to dismiss the petition, which was filed and served on Petitioner by mail on March 16, 2011. No opposition to the motion 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 (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); Hilleryv. 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.
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 found in copies of the official records of state judicial proceedings which have been provided by the parties, 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.
On January 22, 2008, Petitioner was sentenced in the Kern County Superior Court as follows: two (2) consecutive terms of twenty-five (25) years to life for forcible sodomy in violation of Cal. Pen. Code § 286(c)(2) and forcible oral copulation in violation of Cal. Pen. Code § 288a(c)(2); a consecutive term of life with the possibility of parole for assault with the intent to commit sodomy in the commission of a first degree burglary in violation of Cal. Pen. Code §§ 220(b) and 286; and a four-year consecutive term for first degree robbery in violation of Cal. Pen. Code § 212.5(a). (Lodged Document *fn1 (LD) 1; LD 2, 2.) The judgment was affirmed by the California Court of Appeal, Fifth Appellate District, on May 20, 2009. (LD 2, 1.)
Review of the official website for the California Supreme Court reflects that Petitioner filed a petition for review in the California Supreme Court on June 22, 2009. *fn2 The petition was denied summarily on August 26, 2009. (LD 4.) The website does not reflect any other filings on behalf of Petitioner in the California Supreme Court or the California Court of Appeal, Fifth Appellate District.
The petition was marked filed on November 29, 2010. The first page names Petitioner as the petitioner and bears the address of Petitioner's institution of confinement in Lancaster, California. (Pet. 1.) The petition is written in a third-person narrative that refers to Petitioner as "Mr. Cruz." (Id. at 5.) In response to a query regarding whether Petitioner was presently represented by counsel, the "Yes" box was marked with an "X." When asked to provide the name, address, and telephone number of counsel, the petition states the following:
Karissa Adame, SBN # 263455 1318 "K" Street, Bakersfield, CA 93301 (661) 326-0857 (Id. at 8.) After the prayer, on the line for an attorney's signature, the signature of Karissa Adame appears. The verification of the petition is executed by "K. Adame for Anibal Alonso Cruz" and is dated "11/23/10." (Id. at 1.)
III. The Statute of Limitations
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).
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. § ...