The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER SUBSTITUTING DOMINGO URIBE,
JR., AS RESPONDENT (DOC. 39)
ORDER GRANTING RESPONDENT'S ) MOTION TO DISMISS THE FOURTH
AND FIFTH CLAIMS OF THE SECOND ) AMENDED PETITION AS UNTIMELY (DOCS. 39, 34)
ORDER DISMISSING THE FOURTH AND
FIFTH CLAIMS OF THE SECOND
AMENDED PETITION AS UNTIMELY FILED (DOC. 34)
ORDER DIRECTING RESPONDENT TO FILE A RESPONSE TO THE REMAINING
CLAIMS IN THE SECOND AMENDED PETITION NO LATER THAN FORTY-FIVE
(45) DAYS AFTER THE DATE OF
SERVICE OF THIS ORDER
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 their consent in writings signed by the parties or their representatives and filed by Petitioner on August 24, 2009, and on behalf of Respondent on August 18, 2009.
Pending before the Court is Respondent's motion to dismiss the fourth and fifth claims of the second amended petition (SAC), which was served by mail on Petitioner at the California State Prison at Centinela and filed on October 19, 2011, with supporting documentation. Petitioner did not file an opposition or a notice of non-opposition in response to the motion. Pursuant to Local Rule 230(l), the motion is submitted to the undersigned Magistrate Judge on the record and without oral argument.
I. Substitution of Domingo Uribe, Jr., as Respondent
In this proceeding, the officer who has custody of the petitioner must be named as the respondent. 28 U.S.C. § 2242; Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules). This is because the respondent must have the power or authority to provide the relief to which a petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004). A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Here, Petitioner had alleged in the first amended petition that his place of confinement was the California Substance Abuse Treatment Facility (CSATF) at Corcoran, California, and he named as Respondent Derral G. Adams. (Doc. 34, 1.) Thereafter, Petitioner filed a notice of change of address on September 9, 2011, reflecting that he moved to the California State Prison at Centinela (CEN) in Imperial, California, as of that date. (Doc. 36.)
In the motion to dismiss, which was served and filed slightly over a month after Petitioner filed the notice of change of address, Respondent states that the proper Respondent is Kathleen Allison, the Acting Warden of the CSATF. (Doc. 39, 1 n.1.) However, because Petitioner has indicated that his present institution of confinement is CEN, it does not appear that Acting Warden Allison is the proper respondent. The official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that the warden of CEN is presently Domingo Uribe, Jr. *fn1
Fed. R. Civ. P. Rule 25(d) provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.
The Court concludes that Domingo Uribe, Jr., Warden at CEN, is an appropriate respondent in this action. It will be ordered that pursuant to Fed. R. Civ. P. 25(d), Warden Uribe be substituted in place of James Walker.
II. 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 two claims in the SAC 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 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.
In the original petition, Petitioner challenged his 2006 conviction of being an inmate in possession of a deadly weapon in violation of Cal. Pen. Code § 4502, and the sentence imposed pursuant to such conviction on May 1, 2007, in action number SF013296A in the Kern County Superior Court. (Doc. 1, 2.)
In the SAC, Petitioner purports to challenge a conviction of being an inmate in possession of a deadly weapon suffered on May 1, 2007, in the Los Angeles Superior Court. (SAC, doc. 34, 1.) However, he describes further proceedings in connection with the conviction as including applications to the Kern County Superior Court (KCSC) and the California Court of Appeal, Fifth Appellate District (DCA), with a DCA case number that corresponds to his appeal from the Kern County conviction. (Id. at 2, 7, 11.)
In view of this and the documentation submitted by Respondent that refers to the Kern conviction, the Court concludes that in the SAC, Petitioner mistakenly identified the court of conviction as Los Angeles, and that Petitioner is continuing to challenge his 2006 conviction and 2007 sentence imposed in the KCSC.
On May 1, 2007, Petitioner was sentenced after conviction for possession of a sharp instrument in violation of Cal. Pen. Code § 4502(a) and after having been found to have sustained two serious or violent prior convictions for purposes of California's Three Strikes Law, Cal. Pen. Code §§ 667(c)-(j), 1170.12(a)-(e).
On March 18, 2008, the DCA affirmed the conviction on direct appeal. (LD 1.)
On or about April 18, 2008, Petitioner filed a petition for review in the California Supreme Court (CSC). (LD 2.) The petition was summarily denied on May 21, 2008. (LD 3.)
Petitioner filed his initial federal habeas petition in the United States District Court, Central District of California on May 15, 2009. *fn3 (Doc. 1, 8.) The petition contained five claims, but Petitioner admitted that he had not exhausted his state court remedies as to the fourth claim concerning improper use of a prior conviction and the fifth claim concerning the allegedly ineffective assistance of appellate counsel. (Doc. 1, 7; doc. 2, 31-40.)
On June 9, 2009, the case was transferred to this Court. (Doc. 8.) In July 2009, Petitioner requested a stay of the petition to permit exhaustion ...