FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE PETITION (ECF No. 32)
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted in the Kern County Superior Court of battery on a custodial officer and a number of sentencing enhancements were found true. On August 18, 2008, Petitioner was sentenced to an indeterminate state prison term of twenty-five years to life.
On May 28, 2009, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. The California Supreme Court denied review on September 9, 2009.
On May 27, 2011, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court.*fn2 The petition was denied on June 20, 2011.
Petitioner filed the instant federal petition for writ of habeas corpus on July 18, 2012,*fn3 and a first amended petition on September 9, 2012.
Respondent filed a motion to dismiss the petition as untimely under 28 U.S.C. 2244(d)(1)(A), and Petitioner filed an opposition on January 2, 2013. Respondent filed a reply on February 12, 2013.
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 dismiss pursuant to its authority ...