United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING
RESPONDENT'S MOTION TO DISMISS [Doc. 14]
Michael J. Seng Judge
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.
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.)
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
1. Fresno County Superior Court Filed: September 15,
2014; Denied: October 6, 2014;
2. Fresno County Superior Court Filed: October 29,
2014; Denied: December 8, 2014;
3. California Court of Appeal, Fifth Appellate
District Filed: June 20, 2015; Denied: August 7, 2015;
4. California Supreme Court Filed: August 14,
2015; Denied: November 24, 2015;
(See Lodged Docs. 4-11.)
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.)
December 5, 2015, Petitioner filed the instant federal
Petition for Writ of Habeas Corpus in this
Court. 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.
Procedural Grounds for Motion to Dismiss
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.
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