The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE CLERK TO SUBSTITUTE WARDEN P. D. BRAZELTON ) AS RESPONDENT (DOC. 28)
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 28)
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS UNTIMELY, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE
Petitioner is a state prisoner proceeding pro se and in forma pauperis pursuant to 28 U.S.C. § 2254 with a third amended petition that was filed on June 6, 2012 (doc. 22). 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 August 6, 2012, along with supporting documentary exhibits. Petitioner filed an opposition on August 22, 2012. Respondent filed a reply on September 4, 2012.
Petitioner filed an amended opposition on October 1, 2012. Although the Court granted Respondent leave to reply to the supplemental opposition, no supplemental reply was filed.
I. Substitution of Respondent
Petitioner named Domingo Uribe, Jr., Warden of Pleasant Valley State Prison (PVSP), as Respondent. However, in the motion to dismiss, Respondent informed the Court that the current warden of PVSP is P. D. Brazelton and requested that the Court substitute P. D. Brazelton as Respondent 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 P. D. Brazelton, Warden of PVSP, is an appropriate respondent in this action, and pursuant to Fed. R. Civ. P. 25(d), he should be substituted in place of Warden Uribe. Accordingly, the Clerk is ORDERED to substitute Warden P. D. Brazelton as Respondent.
II. Proceeding by a Motion to Dismiss
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 permits 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) (motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (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.
Here, 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 contained in copies of the official records of state judicial proceedings which have been provided by Respondent and Petitioner, 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 October 18, 2006, in case number 1091957 in the Superior Court of the State of California, County of Stanislaus (SCSC), Petitioner was convicted of two counts of attempted murder, four counts of assault with a deadly weapon, one count of assault with a firearm, two counts of discharging a firearm at an occupied motor vehicle, one count of brandishing a firearm at a peace officer, one count of resisting arrest, one count of being an ex-felon in possession of firearm, and one count of evading a peace officer. Further, numerous enhancements were found true. (LD
1.) *fn1 On December 12, 2006, Petitioner was sentenced to a total determinate term of fifty-seven years plus two consecutive, indeterminate terms of twenty-five years to life in prison. (Id.; LD 2, 2.)
On May 20, 2009, the Court of Appeal of the State of California, Fifth Appellate District (CCA) affirmed the judgment on appeal. (LD 2.)
On June 15, 2009, Petitioner filed a petition for review in the California Supreme Court (CSC). (LD 3.) On July 29, 2009, the CSC denied the petition for review without a statement of reasoning or citation of any authority. (LD 4.)
On October 1, 2010, Petitioner filed in the SCSC a petition for
writ of habeas corpus. *fn2 (LD 5.) The
Petitioner's address as
set forth on the petition is Mr. Michael E. Walker, II
P. O. Box. 931, D-3, 129, Imperial, CA 92251. (Id. at 1.) On
December 22, 2010, the SCSC denied the petition in a reasoned decision
on the merits that did not refer to or determine the timeliness of the
petition. (LD 6.) Attached to the order of denial is a certification
and declaration under penalty of perjury of a deputy clerk of the
Office of the Superior Court Administrator that on December 27, 2010,
a copy of the order denying the petition was placed in an envelope
addressed to Petitioner as follows: "Micheal (sic) Edward Walker, II
P. O. Box 931 D-3, 129; Imperial, CA 92251." *fn3
The deputy clerk further declared that the envelope was
sealed, postage fully prepaid, and deposited in the United States Mail
at Modesto, California, on the same date. (Id.)
On May 3, 2011, Petitioner filed in the SCSC a notice and request for ruling in the habeas corpus action in which he referred to the petition that he had filed on or about October 1, 2010, in the SCSC. He requested a ruling on the petition with a citation to state rules of court that he contended required a ruling by the court within sixty (60) days following the filing of a petition, or within thirty (30) days of assignment to a judge. (Opp., doc. 31 at 10-11.) Included in Petitioner's request was a declaration made under penalty of perjury by Petitioner again referred to the date of October 1, 2010, in his later notice and request for ruling. (Opp., doc. 31, 10.) The Court therefore infers that October 1, 2010, as the earliest possible date Petitioner could have submitted his petition to prison authorities for mailing, as the date of filing of the petition.
Petitioner on May 3, 2011. In the declaration, Petitioner declared that he had not received a ruling on the petition and was therefore causing the notice and request for ruling to be filed. (Opp., doc. 31 at 12.) Petitioner likewise completed a declaration of service of the notice and request on the SCSC clerk and the state attorney general. (Id. at 13.) Petitioner's address as set forth on the notice and request for ruling is Michael Walker II, CDCR # 60369, P.O. Box 931, 2302 Brown Road, Centinela State Prison, Imperial, CA 92251-0931. (Id. at 10.) It thus appears that in his post-ruling communications with the SCSC, Petitioner's CDCR number as set forth on the SCSC petition, namely, 60396, was modified by reversing the order of the last two digits to 60369, the CDCR number appearing on the docket in the present proceeding.
On May 23, 2011, the SCSC issued an order noting receipt of Petitioner's notice and request for ruling on or about May 13, 2011, and stating that the court had denied the petition in an order dated December 22, 2010. The court attached to the order a copy of the earlier order of denial. (Opp., doc. 31 at 15.) A proof of service of the court's response to the request for ruling, executed on May 26, 2011, indicates that it was mailed to Petitioner on May 26, 2011. The address to which it was sent is Michael Walker II, CDCR # T-60369, P. O. Box 931, Centinela State Prison, Imperial, CA 92251-0931 (LD 7, att. A.)
The amended opposition contains a copy of Petitioner's legal mail log from the Centinela State Prison mail room. (Doc. 33, Ex. D, 17-22.) Respondent has not objected to the Court's consideration of the log. The Court will consider the log; thus, it is unnecessary for the Court to consider Petitioner's request that the Court take judicial notice of the log. The period of time covered by the portion of the log submitted to the Court is February 8, 2011, through September 12, 2012. The log reflects outgoing mail to the SCSC clerk in Modesto on March 29, 2011 (id. at 20), April 11, 2011 (id. at 19), and May 9, 2011 (id. at 21). It reflects receipt of items from the SCSC that were mailed on April 21, 2011, and May 31, 2011. (Id. at 20.)
On June 6, 2011, Petitioner filed a petition for writ of habeas corpus in the CCA. (LD 7, petition form at added, handwritten page number 37, and proof of service on following page.) On July 7, 2011, the CCA denied the petition without a statement of reasoning or citation of authority. (LD 8.)
On December 1, 2011, Petitioner filed a petition for writ of habeas corpus in the CSC. (LD 9, petition form p. 6.) On April 11, 2012, the CSC denied the petition for writ of habeas corpus without a statement of reasoning or citation of authority. (LD 10.)
A search of the official website of the California courts reflects that no other cases were filed by Petitioner in the CCA or CSC that ...