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Ortiz v. Seibel

United States District Court, E.D. California

March 20, 2017

FAUSTINO ORTIZ, Petitioner,
v.
KIMBERLY A. SEIBEL, Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [ECF NO. 10]

          MICHAEL J. SENG UNITED STATES 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. 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.)

         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, 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 Doc. 2.)

         On 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.)

         Petitioner did not file any state post-conviction collateral challenges.

         On December 1, 2016, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.[1] 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.

         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, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

         B. Commencement of Limitations Period Under 28 U.S.C. § 2244(d)(1)(A)

         On 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 ...


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