United States District Court, E.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 11), DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY FILED (DOC. 1), DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
BARBARA A. McAULIFFE, 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. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on November 12, 2014, and on behalf of Respondent on December 18, 2014. Pending before the Court is the Respondent's motion to dismiss the petition as untimely filed. The motion was filed and served on December 18, 2014. Although the thirty-day period for filing opposition 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 has allowed respondents to file motions to dismiss instead of answers pursuant to Rule 4 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) (using Rule 4 to review a 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 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.
In this case, Respondent's motion to dismiss addresses the timeliness of the petition pursuant to 28 U.S.C. § 2244(d)(1). The material facts pertinent to the motion are found in copies of the official records of state judicial proceedings. There does not appear to be any genuine factual dispute with respect to the facts of record. 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 Habeas Rule 4.
II. Procedural Summary
Petitioner was convicted in the Kern County Superior Court (KCSC) of possession of heroin and cocaine base for sale with prior convictions and a prior prison term. On February 28, 2011, Petitioner was sentenced to twelve years in prison. On February 17, 2012, the Court of Appeal of the State of California, Fifth Appellate District (CCA) issued a reasoned decision in Petitioner's appeal in which it affirmed the judgment. People v. Nathaniel Edward Johnson, no. F062001, 2012 WL 539440, at *1-2 (Feb. 17, 2012).
A search of the official website of the California courts shows that Petitioner did not subsequently file in the California Supreme Court (CSC) a petition for review of the CCA's affirmance. However, he filed a petition for writ of habeas corpus in the California Supreme Court on May 30, 2014, which was denied on August 27, 2014. There is no record of Petitioner's having filed any other petition or application in the CSC.
Petitioner constructively filed the petition in this action on October 22, 2014, the date on which Petitioner signed the proof of service by mail. (Doc. 1, 25.)
III. Untimeliness of the Petition
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997).
The AEDPA provides a one-year period of limitation in which a petitioner must file a petition for writ of habeas corpus. 28 U.S.C. § ...