The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 8, 9, 1) 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 and 304. Pending before the Court is Respondent's motion to dismiss the petition on the ground that as to some of the claims in the petition, Petitioner failed to exhaust his state court remedies. The motion was filed on May 7, 2012, but the proof of service submitted with the motion was defective. (Doc. 8-1.) An amended declaration of service by mail was filed on May 14, 2012, which reflected that on the same date,
Respondent mailed the motion to Petitioner at his address as listed in the docket. (Doc. 9.) Although the time period for the filing of opposition to the motion has passed, no opposition to the motion has been filed.
I. Proceeding by Way of 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 v. Pulley, 533 F. Supp. 1189, 1194 & n.12 (C.D.Cal. 1982).
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 the official records of state 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 filed his petition on February 23, 2012. Petitioner, an inmate of Kern Valley State Prison, is serving a sentence of life without parole and twenty-five years to life pursuant to his conviction of first degree murder in May 2008 in the Madera County Superior Court. Petitioner alleged the following claims in the petition: 1) because Petitioner was arrested without probable cause, all resulting evidence should have been suppressed, including an overly suggestive in-field or "show-up" identification; 2) the trial court erred in not instructing the jury on lesser included offenses; 3) trial counsel, who was being treated with harsh chemotherapy, committed unprofessional errors, such as admitting guilt in the courtroom in front of the jury, which affected the outcome of the proceedings; and 4) cumulative trial errors (the first three grounds) warranted reversal. (Pet., doc. 1, 4-5.)
Although Respondent agrees that Petitioner presented some of his claims to the California Supreme Court, Respondent moves to dismiss the petition contending that the petition contains some claims as to which state court remedies have not been exhausted, and must be dismissed as a mixed petition. Respondent contends that in the petition filed in the California Supreme Court, Petitioner did not raise either the inadmissibility of the in-field identification or cumulative error.
Documents submitted in support of the motion show that in his petition for review filed in the California Supreme Court, Petitioner argued that his arrest was not supported by probable cause, his detention or arrest was impermissibly prolonged, his confession was involuntary and thus improperly admitted, the failure to instruct on lesser included offenses of second degree murder and involuntary manslaughter violated Petitioner's rights under the Fourteenth Amendment, and counsel's pursuit of an untenable theory of defense was ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the Constitution because a better alternative existed. (LD 3, 2.) *fn1
In the argument portion of the petition for review, one of the specific argument headings was as follows:
REVIEW SHOULD BE GRANTED TO DETERMINE IF THE FACTORS CITED BY THE COURT OF APPEAL WERE SUFFICIENT TO ESTABLISH PROBABLE CAUSE FOR ARREST OR IF THE EVIDENCE OBTAINED AS A RESULT OF THE ARREST MUST BE ...