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Thompson v. Hill

United States District Court, E.D. California

July 8, 2014

ALLEN C. THOMPSON, Petitioner,
v.
RICK HILL, Warden, Respondent.

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 11) ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE (DOC. 1), DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the Respondent's motion to dismiss the petition, which was served by mail on Petitioner at the address listed on the docket and filed on March 13, 2014. Although the thirty-day period for filing opposition to the motion has passed, no opposition has been filed.

I. Proceeding by a Motion to Dismiss

Respondent has filed a motion to dismiss the petition on the ground that Petitioner filed his petition outside of the one-year limitation period provided for by 28 U.S.C. § 2244(d)(1).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) 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...."

The Ninth Circuit Court of Appeals permits respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated 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 a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (state procedural default); Hillery v. Pulley , 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery , 533 F.Supp. at 1194 & n.12.

Here, Respondent's motion to dismiss addresses the untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). The material facts pertinent to the motion are contained in copies of the official records of state judicial proceedings provided by Respondent in support of the motion to dismiss and as to which there is no factual dispute. Because Respondent has not filed a formal answer, and 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, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Factual Summary

Petitioner challenges his conviction of armed robbery, kidnapping, discharge of a firearm, and being a felon in possession of a firearm. (Pet., doc. 1., 1; LD 2.)[1] On February 10, 1997, and on February 10, 1998, Petitioner was sentenced in the Fresno County Superior Court (FCSC) to a determinate state prison term of eight years plus an indeterminate term of twenty-five years to life. (LD 1, LD 2.) Petitioner did not appeal his sentence.

Petitioner subsequently filed eight pro se state post-conviction collateral challenges regarding the judgment. The filing date of all the petitions has been determined by applying the "mailbox rule."[2]

On January 17, 2004, Petitioner filed a petition for writ of habeas corpus in the FCSC (LD 3), which was denied on February 10, 2004 (LD 4).

On July 30, 2004, Petitioner filed a petition for writ of habeas corpus in the Court of Appeal of the State of California, Fifth Appellate District (CCA) (LD 5), which was denied summarily, without any statement of reasoning or authority, on August 12, 2004 (LD 6).

On August 24, 2004, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court (CSC) (LD 7), which was denied on July 27, 2005, with a citation to In re Robbins , 18 Cal.4th 770, 780 (1998) (LD 8).

On September 5, 2011, Petitioner filed a petition for writ of habeas corpus in the FCSC (LD 9), which was denied on October 18, 2011, by an order stating, in part, that Petitioner had failed to explain his unreasonable delay in presenting his Cunningham claim, and citing In re Clark , 5 Cal.4th 750, 782-783 (1993) (LD 10).

On October 27, 2011, Petitioner filed a petition for writ of habeas corpus in the CCA (LD 11), which was denied on November 16, 2011, in part because Petitioner had failed to explain his delay of over fourteen years in seeking relief (LD 12).

On April 9, 2012, Petitioner filed a petition for writ of habeas corpus in the FCSC (LD 13), which was denied on July 5, 2012, in an order citing In re Clark ...


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