Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dunton v. Madden

United States District Court, E.D. California

April 20, 2017

RAYMUNDO DUNTON, Petitioner,
v.
RAYMOND MADDEN, Warden Respondent.

          ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (ECF No. 8)

          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. Raymond Madden, warden of Centinela 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 Barton Elwell Bowers of the Office of the Attorney General for the State of California. Both parties have consented to Magistrate Judge jurisdiction. (ECF Nos. 7, 11.)

         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 Madera, upon pleading guilty on April 26, 2014 to assault with a deadly weapon. (See Lodged Doc. 1.) On June 11, 2004, Petitioner was sentenced to an indeterminate state prison term of twenty-five (25) years to life. (Id.)

         On February 7, 2005, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme Court on April 13, 2005. (Lodged Docs. 3-4.)

         Petitioner, through counsel, [1] proceeded to file four petitions for writ of habeas corpus in the California state courts as follows:

1. Madera County Superior Court Filed: July 13, 2015; Denied: July 15, 2015;
2. California Court of Appeal, Fifth Appellate District Filed: August 6, 2015; Denied: August 20, 2015;
3. California Court of Appeal, Fifth Appellate District Filed: August 31, 2015; Denied: November 5, 2015;
4. California Supreme Court Filed: January 26, 2016; Denied: April 20, 2016.

(Lodged Docs. 5-11.)

         On November 17, 2016, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court.[2] On January 20, 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). (Mot. to Dismiss, ECF No. 8.) Petitioner filed an opposition on April 5, 2017. (ECF No. 14.) Respondent replied on April 14, 2017. (ECF No. 15.) 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.