FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. #17]
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Merced, following his conviction by plea of nolo contendere on March 1, 2004, to assault with a deadly weapon likely to cause great bodily injury. He admitted three enhancements alleging that he committed great bodily injury, used a firearm during commission of the offense, and committed the offense in furtherance of a criminal street gang. Pursuant to the plea agreement, Petitioner was sentenced to serve a determinate term of twenty-five (25) years in state prison. Petitioner appealed the sentence. On January 20, 2005, the California Court of Appeals, Fifth Appellate District, remanded the matter to the trial court to amend the abstract of judgment to reflect Petitioner admitted one gang use enhancement and one firearm enhancement; but otherwise, the judgment was affirmed. Petitioner did not seek further relief in the California Supreme Court.
Petitioner filed three post-conviction collateral challenges with respect to the judgment in the state courts, all petitions for writ of habeas corpus, as follows:
1. Merced County Superior Court Filed: April 8, 2009; Denied: December 30, 2009;
2. California Court of Appeals, Fifth Appellate District Filed: March 24, 2010; Denied: February 3, 2011;
3. California Supreme Court Filed: March 7, 2011; Denied: September 21, 2011.
On May 16, 2012, Petitioner filed the instant federal petition for writ of habeas corpus in this Court. On July 10, 2012, the undersigned issued a Findings and Recommendation which recommended Petitioner's second ground for relief be dismissed for failure to state a cognizable claim for relief. On October 26, 2012, the District Court adopted the Findings and Recommendation in full and dismissed the claim. Respondent was then directed to file a response to the remaining claim in the petition. On December 19, 2012, Respondent filed a motion to dismiss the petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1). On March 11, 2013, Petitioner filed an opposition to Respondent's motion to dismiss. Respondent filed a reply to the opposition on April 16, 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); Harrison v. Galaza , 1999 WL 58594 (N.D. Cal.1999) (using Rule 4 to review motion to dismiss for statute of limitations violation). 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. Because Respondent has not yet filed a formal answer, the Court will review Respondent's ...