The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DENY RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 15) FINDINGS AND RECOMMENDATION TO DISMISS AS MOOT PETITIONER'S MOTION FOR STAY AND ABEYANCE (DOC. 17) OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se 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 two, intertwined motions. On May 14, 2012, Respondent filed a motion to dismiss the petition because it is a "mixed" petition containing some claims as to which state court remedies were not exhausted; Respondent also filed supporting documentation. In response, on June 6, 2012, Petitioner filed a request for stay and abeyance of the petition so that he might return to state court to exhaust state court remedies as to unexhausted claims. Respondent filed opposition to the request for a stay on June 20, 2012. 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 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 to be found 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.
II. Motion to Dismiss the Petition
Petitioner's petition (doc. 1) was filed on February 16, 2012, and transferred to this division of this Court on February 29, 2012.
In the petition, Petitioner alleges that he is an inmate of the California State Prison at Los Angeles County (CSP-LAC) serving a sentence of life without the possibility of parole plus one year for first degree murder in the course of a robbery and while armed with a firearm in ...