The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DENY RESPONDENT'S MOTIONS TO DISMISS THE PETITION (DOCS. 18, 20) AND TO DIRECT THE RESPONDENT TO RESPOND TO THE PETITION IN FORTY-FIVE (45) DAYS
FINDINGS AND RECOMMENDATIONS TO DISMISS AS MOOT PETITIONER'S
MOTIONS FOR A STAY (DOCS. 21, 24)
OBJECTIONS DEADLINE: THIRTY (30) DAYS
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 through 304. Pending before the Court are the parties' interrelated motions.
Respondent filed a motion to dismiss on August 12, 2011, on the ground that state court remedies as to some of the claims in the petition were not exhausted. A second, duplicative motion to dismiss was filed on August 15, 2011. Petitioner filed opposition on October 18, 2011. No reply was filed.
Petitioner filed motions for a stay and abeyance of the action on August 22, 2011, and on October 17, 2011, in which he sought a stay, including but not limited to a stay based on good cause pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
On November 1, 2011, Respondent filed a "CONDITIONAL NON-OPPOSITION TO PETITIONER'S REQUEST FOR A STAY AND ABEYANCE," in which Respondent opposed a Rhines stay because of what Respondent perceived as a lack of good cause for a stay. Respondent suggested a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), and further stated that if Petitioner "should disagree with this procedure," Respondent sought thirty (30) days to file formal opposition to the motion.
In light of Petitioner's failure to reply to Respondent's conditional non-opposition, the Court granted Respondent additional time to file formal opposition to Petitioner's motion for a stay. Respondent filed opposition on January 5, 2012.
Although the time for replying to the opposition had passed, on February 16, 2012, the Court granted Petitioner's motion for an extension of time to file a reply to the opposition to the motion for a stay. Although the time for Petitioner to file a reply has passed, no reply has been filed.
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 contained in the pleadings and in copies of state records 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.
II. Motion to Dismiss the Petition for ...