United States District Court, E.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
[ECF NO. 10]
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Kimberly A. Seibel, warden of Chuckawalla Valley
State Prison, is hereby substituted as the proper named
respondent pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure. Respondent is represented by Janet A. Neeley
of the Office of the Attorney General for the State of
California. Both parties have consented to Magistrate Judge
jurisdiction. (ECF Nos. 7, 9.)
is currently in the custody of the California Department of
Corrections pursuant to a judgment of the Superior Court of
California, County of Fresno, resulting from a January 31,
2005 jury verdict finding Petitioner guilty of multiple
sexual felonies involving his minor daughter. (Lodged Docs.
1-2.) He was sentenced to an aggregate determinate state
prison term of twenty-four years and eight months. (Lodged
August 31, 2006, the California Court of Appeal, Fifth
Appellate District, affirmed the judgment. (Lodged Doc. 2.)
Review was denied by the California Supreme Court on November
15, 2006. (Lodged Docs. 3-4.)
did not file any state post-conviction collateral challenges.
December 1, 2016, Petitioner filed the instant federal
Petition for Writ of Habeas Corpus in this
Court. On February 3, 2017, 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 because the petition contains unexhausted
claims. (Mot. to Dismiss, ECF No. 10.) Over thirty days have
passed and Plaintiff has not filed an opposition. 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
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.
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, the
Court will review Respondent's motion to dismiss pursuant
to its authority under Rule 4.
Commencement of Limitations Period Under 28 U.S.C. §
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (hereinafter
“AEDPA”). AEDPA imposes various requirements on
all petitions for writ of habeas corpus filed after the date
of its enactment. Lindh v. Murphy, 521 U.S. 320, 117