The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION,
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE,
DIRECTING CLERK OF COURT TO ENTER JUDGMENT, AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
Petitioner is 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 is currently in custody pursuant to the December 1, 2009, judgment of the Tulare County Superior Court in case numbers VCF213557 and VCF214185.
The claims in the instant petition relate to the October 30, 2002, judgment of the Superior Court in case numbers CRF-01-80477, CRF-02-96909, and CRF-02-96947.*fn1 Respondent submits that Petitioner did not appeal or seek review of the October 30, 2002, judgment in any of the three cases. However, on August 27, 2003, the Superior Court, after being informed by the California Department of Corrections of discrepancies between the sentence imposed and the crimes listed, held a hearing and the trial court corrected the judgment as reflected in the minute order and abstract of judgment. There were no substantive changes made. (Lod. Ex. Nos 2 & 3.)
Petitioner was released from custody some time before November of 2008. However, he was arrested on new charges in case numbers VCF213557 and VCF214185. Petitioner pled guilty and was recommitted to prison in December of 2009.*fn2 (See Lod. Ex. No. 1.)
In January 2010, over six years after the hearing to correct the minute order and abstract of judgment on August 27, 2003, Petitioner filed habeas corpus petitions in the state courts challenging the October 30, 2002 judgment. The last of the state habeas petitions was filed in December of 2010, and denied in April of 2011.
Petitioner filed the instant petition for writ of habeas corpus on June 16, 2011. Respondent filed a motion to dismiss the petition as untimely on August 4, 2011. Petitioner filed /// an opposition on August 18, 2011, and Respondent filed a reply on September 29, 2011. Petitioner filed a surreply on October 28, 2011.
On October 30, 2002, the trial court sentenced petitioner on all three cases, 80477, 96909, and 96947. In case number 80477, the court lifted the suspension of the six-year term for violation of California Health and Safety Code section 11380, and imposed concurrent two-year terms for violation of California Penal Code sections 261.5 and 289(h). In case number 96909, the court imposed a consecutive one year and four months term for violation of California Penal Code section 12025(a)(3), with a prior "strike" conviction. In case number 96947, the court imposed a concurrent one year and four months term for violation of California Health and Safety Code section 11377(a), with a prior "strike" conviction. (See Lodged Ex. Nos 2 & 3.)
A. 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 ...