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Eversole v. Beard

United States District Court, E.D. California

March 19, 2014

ROBERT EVERSOLE, Petitioner,
v.
JEFFREY BEARD, Warden, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE PETITION [ECF No. 14]

GARY S. AUSTIN, 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.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections at Kern Valley State Prison. He challenges a prison disciplinary hearing held on April 11, 2010, wherein Petitioner was found guilty of possessing an inmate-manufactured weapon and for which he was assessed a 360-day loss of time credits. (Resp't's Mot. to Dismiss, Ex. 1; Petition at 41-44.) Petitioner administratively appealed the decision; the final administrative appeal was denied on January 7, 2011. (Resp't's Mot. to Dismiss, Ex 1 at 15.)

Petitioner filed several collateral challenges in the state courts. On January 9, 2012, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. (Resp't's Mot. to Dismiss, Ex. 1.) The superior court denied the petition on February 9, 2012. (Resp't's Mot. to Dismiss, Ex. 2.) Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal on April 3, 2012, and the petition was summarily denied on June 19, 2012. (Resp't's Mot. to Dismiss, Ex. 3-4.) On April 1, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, and the petition was denied on June 12, 2013. (Resp't's Mot. to Dismiss, Ex. 5-6.)

On September 9, 2013, Petitioner filed the instant petition for writ of habeas corpus in this Court. Respondent filed a motion to dismiss the petition on February 6, 2014, as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d)(1). Petitioner did not file an opposition.

DISCUSSION

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 motion to dismiss pursuant to its authority under Rule 4.

B. Limitation Period for Filing a Petition for Writ of Habeas Corpus

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). The AEDPA imposes various requirements on all petitions for writ of habeas corpus filed after the date of its enactment. Lindh v. Murphy , 521 U.S. 320 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997).

In this case, the petition was filed on September 2, 2013, and therefore, it is subject to the provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. ...


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