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Davidson v. Miller

United States District Court, E.D. California

November 26, 2014

TOMMY DAVIDSON, Petitioner,
v.
AMY MILLER, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 11]

MICHAEL J. SENG, 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 Robert C. Nash, of the Office of the Attorney General for the State of California.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, upon being convicted by a jury on March 9, 2010 of first degree murder with a number of special circumstances and sentencing enhancements. (See Lodged Docs. No. 1-2.) On May 18, 2010, Petitioner was sentenced to an indeterminate state prison term of life without the possibility of parole, plus twenty-five (25) years to life, plus an additional twenty-two (22) years. (Id.)

On October 31, 2011, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme Court on February 15, 2012. (Lodged Docs. 3-4.)

Starting in January 2013, Petitioner filed three post-conviction collateral challenges with respect to his conviction in the state courts filed as follows:

[1] [2]
[3]

(See Lodged Docs. 5-10.)

On April 23, 2014, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.[4] On August 20, 2014, Respondent filed a Motion to Dismiss the petition as having been filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d). (Mot. to Dismiss, p.1.) Petitioner filed objections to the motion on September 10, 2014, and Respondent filed a reply on September 17, 2014. (ECF Nos. 13-14.)

II. 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); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). 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 the one-year limitations period. 28 U.S.C. § 2244(d)(1). 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 and Respondent has not yet filed a formal answer, ...


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