The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [ECF No. 11]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. *fn1
Petitioner was convicted of second degree murder, attempted murder, assault with a firearm, possession of a firearm by a felon, and attempting to dissuade a witness. Petitioner is serving an indeterminate state prison term of fifty-five years to life, plus a determinate term of fifty-two years, four months.
The California Court of Appeal, Fifth Appellate District, affirmed the judgment on November 4, 2009. The California Supreme Court denied review on January 21, 2010.
Petitioner filed three pro se state post-conviction collateral petitions. *fn2 The first petition for writ of habeas corpus was filed on July 14, 2010. The petition was denied on September 20, 2010.
The second petition for writ of habeas corpus was filed on January 12, 2011, *fn3 in the California Court of Appeal, Fifth Appellate District. The petition was denied on July 28, 2011.
The third state petition for writ of habeas corpus was filed in
the California Supreme Court on December 19, 2011. *fn4
The petition was denied on May 9, 2012.
Petitioner filed the instant federal petition for writ of habeas on September 10, 2012. *fn5
On January 25, 2013, Respondent filed a motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d)(1)(A). Petitioner did not file an opposition.
I. 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. Id.
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 ...