The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES (DOCS. 12, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT PREJUDICE (DOC. 1), DECLINE TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE
CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS
AFTER SERVICE OF THIS ORDER
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. 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 Respondent's motion to dismiss the petition for failure to exhaust state court remedies, which was filed on June 6, 2011. Petitioner filed an opposition on June 21, 2011. Pursuant to the Court's order, Respondent filed supplemental briefing and records on August 10, 2011. Petitioner filed a supplemental response on September 6, 2011.
I. Proceeding by a Motion to Dismiss 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).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
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).
Further, 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, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are to be found in the pleadings and in copies of the official records of state parole and judicial proceedings which have been provided by the parties, and as to which there is no factual dispute. The Court will therefore review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner, an inmate of the Avenal State Prison (ASP), challenges the decision of California's governor made in March 2010 to rescind a decision of California's Board of Parole Hearings (BPH) finding Petitioner suitable for parole after a hearing held before the BPH on October 14, 2009. (Pet 1-22, 38.) Petitioner filed post-judgment proceedings for collateral relief in the Superior Court of the State of California, County of Riverside; the California Court of Appeal for the Fourth Appellate District; and the California Supreme Court. (Id. 2-3.)
After the Court's screening process, the sole claim remaining in the petition before the Court is that application to Petitioner of the procedure for gubernatorial review denied Petitioner's right to due process of law because it changed the terms of the plea agreement reached in connection with his guilty plea to the commitment offense, second degree murder. Respondent contends that Petitioner did not present the factual or legal basis of this claim to the California Supreme Court, and thus Petitioner failed to exhaust state court remedies as to the one claim remaining in the petition.
The record reflects that Petitioner did not mention the issue in the body of the petition that he filed in the California Supreme Court. (Pet., doc. 1, 30-52.) However, it is undisputed that Petitioner raised the issue in a reply to the informal response of the government in the Superior Court habeas proceeding. This reply, entitled "RESPONSE TO THE ATTORNEY GENERALS INFORMAL RESPONSE, in re Matthew Balkam, Case No. RIC10009489," was attached as an exhibit to the petition filed by Petitioner in the California Supreme Court. (Id. at 345-48.) Review of the copy of the entire petition, including ...