United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE PETITION [ECF NO. 12]
STANLEY A. BOONE, 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 and Rehabilitation at Kern Valley State Prison. He challenges a prison disciplinary hearing held on January 8, 2010, wherein Petitioner was found guilty of possessing an inmate-manufactured weapon and for which he was assessed a 181-day loss of time credits. (Pet. at 12.) Petitioner administratively appealed the decision, and the final administrative appeal was denied at the Director's Level on December 29, 2010. (Pet. at 28.)
Petitioner filed several collateral challenges in the state courts. On February 23, 2011, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. (Pet. at 30.) The superior court denied the petition on March 14, 2011. (Pet. at 33.) Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal on January 31, 2012. (Pet. at 34-35.) The petition was denied on April 26, 2012. (Pet. at 3.) On June 12, 2012,  Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on November 12, 2012. (Pet. at 41.)
On October 10, 2013,  Petitioner filed the instant petition for writ of habeas corpus in this Court. Respondent filed a motion to dismiss the petition on February 14, 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.
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 ...