The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER SUBSTITUTING RALPH M. DIAZ AS RESPONDENT ) FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 13)
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO
DISMISS THE PETITION (DOC. 13), DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS AS UNTIMELY (DOC. 1), AND DIRECT THE ENTRY OF
JUDGMENT FOR RESPONDENT FINDINGS AND RECOMMENDATIONS TO DECLINE TO
ISSUE A CERTIFICATE OF APPEALABILITY
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 as untimely, which was filed on October 1, 2012. Petitioner filed opposition on October 11, 2012, and Respondent filed a reply on November 16, 2012.
I. Substitution of Respondent
Preliminarily, the Court notes that Respondent requests substitution of the named Respondent because the current warden of Petitioner's institution of confinement, the California Substance Abuse Treatment Facility (CSATF), is Ralph M. Diaz.
Respondent requested that the substitution occur pursuant to Fed. R. Civ. P. 25(d), which provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.
The Court concludes that Ralph M. Diaz, Warden at CSATF, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of the California Department of Corrections.
Accordingly, it is ORDERED that the Clerk SUBSTITUTE Ralph
M. Diaz, Warden, as Respondent in this action.
II. Propriety of a Motion to Dismiss the Petition Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1).
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); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a 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 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, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are mainly to be found 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. Because Respondent has not filed a formal answer, and 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, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
On March 26, 2008, Petitioner was convicted in the Kern County
Superior Court (KCSC) of two counts of forcibly committing a lewd or
lascivious act upon a child under the age of fourteen
(counts one and two) in violation of Cal. Pen. Code § 288(b) and a
single count of first degree burglary (count three) in violation of
Cal. Pen. Code § 460. (LD 1.) *fn1 The jury
further found that pursuant to Cal. Pen. Code § 667.61(a), Petitioner
committed the burglary with the intent to violate Cal. Penal Code §
288(a) or 288(b)(1). Petitioner was sentenced in 2008 *fn2
to an indeterminate state prison term of twenty-five
years to life on count one, and concurrent terms of eight and six
years, respectively, on counts two and three. The court stayed
execution of sentence on counts two and three. (LD 1-2.)
On January 27, 2010, the California Court of Appeal, Fifth Appellate District (CCA) affirmed the judgment. (LD 2.)
On March 3, 2010, Petitioner sought review in the California Supreme Court (CSC), which was denied on April 14, 2010. (LD 3-4.)
On June 26, 2010, *fn3 Petitioner filed a petition for writ of habeas corpus in the KCSC, which was denied on August 25, 2010. (LD 6-7.)
The Court takes judicial notice of its docket and documents filed in Vaughn v. Allison, case number 1:11-cv-01384-GSA-HC, which show that on August 17, 2011, Petitioner filed a previous federal habeas application challenging the same convictions. The Court found that the petition contained unexhausted claims and dismissed the action without prejudice on February 13, 2012. (Doc. 1, 6; doc. 18.)
On April 28, 2012, Petitioner filed a petition for writ of habeas corpus in the CSC, which was denied on July 11, 2012. (LD 8-9.)
Petitioner filed the petition in this action on July 20, 2012. (Doc. 1, 6.)
IV. The Limitation Period
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Because Petitioner filed his petition for writ of habeas corpus here on July 20, 2012, the AEDPA applies to the petition.
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). It further identifies the pendency of some proceedings for collateral review as a basis for tolling ...