United States District Court, E.D. California
For Sharon Fennix, Petitioner: Darren Seiji Teshima, LEAD ATTORNEY, Orrick Herrington and Sutcliffe LLP, San Francisco, CA.
For D. K. Johnson, Respondent: Janine Winifred Boomer, LEAD ATTORNEY, Office of the Attorney General, Correctional Writs & Appeals, Sacramento, CA.
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS (ECF No. 13)
Gary S. Austin, UNITED STATES MAGISTRATE JUDGE.
Petitioner is a state prisoner represented by counsel proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1).
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation confined at Central California Women's Facility in Chowchilla, California. Petitioner challenges a prison disciplinary hearing held on January 15, 2012, in which she was found guilty of fighting. As a result, she was assessed a 90 day loss of credits. Petitioner administratively appealed the decision and also filed petitions for writ of habeas corpus in the state courts.
On November 27, 2013, Petitioner filed the instant federal habeas petition in the Northern District of California, and it was transferred to this Court on February 6, 2014. Petitioner contends that there was insufficient evidence to find her guilty of the fighting violation.
Petitioner's Minimum Eligible Parole Date (MEPD) was in 1997. (Motion to Dismiss at 5, ECF No. 13). On January 7, 2014, Petitioner had a parole hearing and was denied parole. (Reply at 1, ECF No. 16).
A. Preliminary Review
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). Thus, a respondent can file a motion to dismiss after the court orders ...