The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION AND DIRECTING CLERK OF COURT TO DISMISS PETITION WITH PREJUDICE AS UNTIMELY [Doc. 16]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Following a jury trial, Petitioner was convicted of assault with a deadly weapon by a prisoner. Petitioner admitted he suffered two prior strike convictions. Petitioner was sentenced to an indeterminate state prison term of twenty-five years to life.
On November 23, 2010, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. The California Supreme Court denied review on February 2, 2011.
Petitioner did not file any state post-conviction collateral petitions with respect to the pertinent judgment or claim.
Petitioner constructively filed the instant federal petition for writ of habeas corpus on June 28, 2012.*fn1
Respondent filed a motion to dismiss on November 16, 2012. Petitioner filed an opposition on November 30, 2012, and Respondent filed a reply on December 7, 2012.
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 ...