United States District Court, E.D. California
DeWayne Thompson, Petitioner, Pro se, REPRESA, CA.
For Timothy Lockwood, Director of California Department of Corrections and Rehabilitation, Respondent: Andrew Robert Woodrow, LEAD ATTORNEY, Attorney General's Office of the State of California, Sacramento, CA.
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE PETITION AND PETITIONER'S MOTIONS FOR DEFAULT (ECF Nos. 29, 33, and 36)
LAWRENCE J. O'NEILL, UNITED STATES 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. Respondent is represented in this action by Andrew Woodrow of the Attorney General of California.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation at Pelican Bay State Prison. He challenges a prison disciplinary hearing held on August 8, 2012, at Corcoran State Prison, wherein Petitioner was found guilty of indecent exposure and for which he was assessed a 90 day loss of time credits. (Pet. at 1, ECF No. 1). Petitioner administratively appealed the decision, and the final administrative appeal was denied on January 27, 2013. (Pet., Ex. A at 4-5).
Petitioner filed several collateral challenges in the state courts. On February 4, 2013, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court. (Motion to Dismiss, Ex. 1). The Superior Court denied the petition on April 4, 2013. (Pet., Ex. C). Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal Fifth Appellate District on April 29, 2013. (Motion to Dismiss, Ex. 2). The petition was denied by the Fifth Appellate District on May 23, 2013. (Motion to Dismiss, Ex. 2). On June 13, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Motion to Dismiss, Ex. 3). The petition was denied on August 14, 2013, with a citation to People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995) and In re Dexter, 25 Cal.3d 921, 925, 160 Cal.Rptr. 118, 603 P.2d 35 (1979). (Pet, Ex. D).
On September 24, 2013, Petitioner filed the instant petition for writ of habeas corpus in the Northern District of California. (ECF No. 1). On April 7, 2014, the petition was transferred to this Court. (ECF No. 15). On August 8, 2014, Respondent filed a motion to dismiss the petition as unexhausted. On August 28, 2014, Petitioner filed an opposition to the motion to dismiss, and a motion for default judgment. (ECF Nos. 32 and 33). On September 8, 2014, Respondent filed a reply to the opposition, and an opposition to the motion for default judgment. (ECF Nos. 34 and 35). On September 16, 2014, Petitioner filed a second motion for default judgment. (ECF No. 36). On October 3, 2014, Respondent filed an opposition to the second motion for default judgment. (ECF No. 37).
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. 2254(b)(1)'s exhaustion requirement for failure to exhaust administrative remedies and failure to exhaust judicial remedies. The Court will review Respondent's motion to dismiss pursuant to its ...