The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on April 17, 2012 in the Sacramento Division of this Court.*fn1
(Doc. 1). The petition, which challenges only Petitioner's 2005 validation as a member of the Black 2 Guerilla Family ("BGF") prison gang, was transferred to the Fresno Division on June 28, 2012. (Doc. 3 5). On July 31, 2012, the Court ordered Respondent to file a response within sixty days. (Doc. 10). 4 On September 28, 2012, Respondent filed the instant motion to dismiss the petition for untimeliness 5 and for lack of habeas corpus jurisdiction. (Doc. 15). After being granted several extensions of time, 6 Petitioner filed his opposition on December 19, 2012. (Doc. 20). Respondent filed a reply on 7 December 27, 2012. (Doc. 21).
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition as being filed outside the one year limitations period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule 4 of the Rules Governing Section 2254 Cases 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 . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's 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 limitation period and lack of habeas jurisdiction. 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 and Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
B. Limitation Period For Filing Petition For Writ Of Habeas Corpus
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas corpus 4 filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997); 5 Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 (1997). 6
The instant petition was filed on April 17, 2012, and thus, it is subject to the provisions of the AEDPA. 8
The AEDPA imposes a one-year period of limitation on petitioners
seeking to file a federal
petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As
amended, § 2244, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In most cases challenging a conviction or sentence, the limitation period begins running on the date that the petitioner's direct review became final. 28 U.S.C. § 2244(d)(1)(A). Where, however, as here, the petitioner is challenging a prison disciplinary or administrative action, the statute of limitations commences when the petitioner's final administrative appeal is denied, i.e., the "date on which the factual predicate of the claim or claims presented could have been discovered through the 2 exercise of due diligence" under § 2244(d)(1)(D). Redd v. McGrath, 343 F.3d 1077, 1079 (9th Cir. 2003)(holding that the Board of Prison Term's denial of an inmate's administrative appeal was the "factual predicate" of the inmate's claim that triggered the commencement of the limitations period); Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004)(holding that the statute of limitations does not 6 begin to run until a petitioner's administrative appeal has been denied). The Ninth Circuit has held 7 that the one-year statute commences under § 2244(d)(1)(D) when the petitioner could have discovered 8 the factual predicate for his claims, not when he discovers the legal significance of those facts. Hasan 9 v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001).
Petitioner's Director's Level appeal was denied on October 11, 2005. (Doc. 1, Exhibits, p. 1).
Therefore, the limitations period commenced the following day, i.e., on October 12, 2005, and Petitioner would then have had one year from that date, or until October 11, 2006, within which to file his federal habeas petition. As mentioned, the petition was not filed until April 17, 2012, approximately five and one-half years after the limitation period would have expired. Thus, unless ...