FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS (ECF No. 15)
STANLEY A. BOONE, Magistrate Judge.
Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently incarcerated at the Central California Women's Facility following her conviction of first degree murder of her husband, which was carried out for financial gain. Petitioner is serving an indeterminate state prison term of life without the possibility of parole.
On February 28, 2011, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. On June 8, 2011, the California Supreme Court denied review.
Petitioner did not file any state post-conviction collateral petitions.
Petitioner filed the instant federal petition for writ of habeas corpus on September 7, 2012. Respondent filed a motion to dismiss the petition as untimely on December 14, 2012. Petitioner filed an opposition on January 4, 2013, and Respondent filed a reply on April 8, 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, 602-603 (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 ...