The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT‟S MOTION TO DISMISS (Doc. 32) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on January 27, 2011 in the Sacramento Division of this Court.*fn1 (Doc. 1). The petition challenges Petitioner‟s 2008 Tulare County Superior Court conviction for, inter 2 alia, shooting at an occupied motor vehicle and various enhancements, as well as his 32-years-to-life 3 sentence. (Doc. 1, p. 1). Petitioner raised but a single claim in his original petition, i.e., that the trial 4 court erred in refusing Petitioner‟s motion to discharge his trial attorney and allow a new attorney to 5 represent him. (Doc. 1, p. 4). On February 10, 2011, the case was transferred to the Fresno Division. 6
(Doc. 3). On March 25, 2011, the Court ordered Respondent to file a response. (Doc. 7). 7
Before Respondent filed a response, Petitioner, on June 15, 2011, filed a motion to stay 8 proceedings while Petitioner exhausted additional claims in state court. (Doc. 17). On July 8, 2011, 9 Respondent filed a notice of non-opposition to the stay request. (Doc. 19). On September 12, 2011, the Court granted Petitioner‟s motion for stay. (Doc. 20). On January 6, 2012, Petitioner notified the Court that the California Supreme Court had denied his habeas petition on November 22, 2011. (Doc. 25). By written order dated January 11, 2012, the Court ordered Petitioner to file a first amended petition containing all of Petitioner‟s exhausted claims within thirty days. (Doc. 28). On February 7, 2012, Petitioner filed the instant first amended petition raising his original claim as well as an additional claim that trial counsel provided ineffective assistance in violation of Petitioner‟s Sixth Amendment rights. (Doc. 27). The Court ordered Respondent to file a response to the first amended petition, and, on April 10, 2012, Respondent filed the instant motion to dismiss, contending that the newly added ground two was untimely. (Doc. 32). Petitioner has not filed an opposition to the motion to dismiss.
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases 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 . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent‟s to file a Motion to Dismiss in lieu of an Answer if 2 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state‟s 3 procedural rules. See, e.g., O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to 4 evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 5 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state 6 procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, 7 a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use 8 Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 9
In this case, Respondent's Motion to Dismiss is based on a violation of 28 U.S.C. § 2244(d)(1)'s one year limitation period. 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 and Respondent has not yet filed a formal Answer, the Court will review Respondent‟s Motion to Dismiss pursuant to its authority under Rule 4.
A. Limitation Period For Filing Petition For Writ Of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). The instant petition was filed on January 27, 2011, and thus, it is subject to the provisions of the AEDPA.
The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As ...