Colombero v. Davey

          FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 14]

          Michael J. Seng 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, David Davey, Warden of California State Prison - Corcoran, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Charity S. Whitney of the office of the California Attorney General.

         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 Fresno, upon being found guilty of second degree robbery and a number of sentencing enhancements on July 30, 2012. (See Lodged Doc. No. 1.) On August 28, 2012, Petitioner was sentenced to an indeterminate state prison term of forty-one (41) years to life. (Id.)

         On November 7, 2013, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. 1.) On January 15, 2014, the California Supreme Court denied review. (Lodged Docs. 2-3.) Petitioner then proceeded to file four post-conviction collateral challenges with respect to his conviction:

1. Fresno County Superior Court Filed: September 15, 2014^[1]; Denied: October 6, 2014;

2. Fresno County Superior Court Filed: October 29, 2014^[2]; Denied: December 8, 2014;

3. California Court of Appeal, Fifth Appellate District Filed: June 20, 2015^[3]; Denied: August 7, 2015;

4. California Supreme Court Filed: August 14, 2015^[4]; Denied: November 24, 2015;

(See Lodged Docs. 4-11.)

         Prior to the filing the instant petition, Petitioner filed a federal habeas petition with this Court challenging the same conviction. The petition was filed on February 4, 2015, and dismissed on June 11, 2015, for failure to exhaust claims in state court. (Colombero v. Gibson, 1:15-cv-00181 LJO MJS HC, Lodged Docs. 12-14.)

         On December 5, 2015, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.^[5] On April 11, 2016, Respondent filed a Motion to Dismiss the petition as being filed outside the one-year limitations period prescribed by 28 U.S.C. § 2244(d) and for failure to exhaust state remedies. (ECF No. 14, Mot. to Dismiss) Petitioner filed an opposition to the motion on April 21, 2016. (ECF No. 17.) In the opposition, Petitioner requested the unexhausted claims of the petition be dismissed and for him to proceed with only his exhausted claims. (Id.) On June 1, 2016, Respondent filed a reply to the opposition. (ECF No. 21.) The matter stands ready for adjudication.

         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 ...