Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 13]
On February 17, 1999, Petitioner was found guilty of possession of a weapon in prison. (Cal. Penal Code, § 4502(a)). At that time, Petitioner was serving an indeterminate sentence for second degree murder (Cal. Penal Code, § 187(a)). On the same date, he was sentenced to a total indeterminate term of 25 years to life in prison. Petitioner did not directly appeal this judgment.
However, Petitioner filed three pro se state post-conviction collateral petitions. The first petition was filed on March 20, 2006, in the California Supreme Court.*fn2 The petition was denied on November 29, 2006.
The second petition for writ of habeas corpus was filed on June 16, 2011, also in the California Supreme Court. The petition was denied on January 25, 2012.
The third and final state petition was filed on January 12, 2012, again in the California Supreme Court. The petition was denied on May 9, 2012, with citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750-767-769 (1993).
Petitioner filed the instant petition for writ of habeas corpus on June 15, 2012. Respondent filed a motion to dismiss on September 11, 2012. On October 15, 2012, Petitioner filed a notice of voluntary dismissal.*fn3
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits 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 respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of 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 motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s one-year limitations period. Therefore, the Court will review Respondent's motion to ...