FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS (Doc. 11) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON, Magistrate Judge.
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 March 28, 2013. On April 19, 2013, the Court ordered Respondent to file a response to the petition. (Doc. 7). On June 18, 2013, Respondent filed the instant motion to dismiss, contending that the petition should be dismissed as untimely and as a second and successive petition. (Doc. 11). On July 18, 2013, Petitioner filed his opposition to the motion to dismiss, arguing that the petition is not successive because he is raising a claim based on newly discovered evidence that was not available to him in the prior federal petition. (Doc. 16). On July 25, 2013, Respondent filed a reply to the opposition. (Doc. 17).
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 on the fact that the petition is a second and successive one. 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. Second and Successive Petition.
The documents provided by Respondent establish that Petitioner has previously filed a federal petition challenging the same conviction and sentence in case no. 1:99-cv-06122-OWW-HGB. (LD 17-20). In that case, Petitioner challenged his 1995 conviction on two grounds, i.e., instructional error and insufficient evidence. On April 20, 2000, the Court issued Findings and Recommendations to deny the petition on its merits; on July 13, 2000, the District Judge adopted those Findings and Recommendations, entered judgment against Petitioner, and closed the case.
A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and these new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
However, it is not the district court that decides whether a second or successive petition meets these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In other words, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. See Felker v. Turpin , 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States , 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart , 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States , 96 F.3d 990, 991 (7th Cir. 1996).
Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997). Although Petitioner contends that he could not have known of the newly discovered evidence after the resolution of his first petition, as discussed above, whether Petitioner's allegations satisfy the exception provided in 28 U.S.C. § 2244(b)(2)(A)-(B) is not a question ...