United States District Court, E.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (ECF No.
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.
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,
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
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.)
through counsel,  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,
4. California Supreme Court Filed: January 26, 2016;
Denied: April 20, 2016.
(Lodged Docs. 5-11.)
November 17, 2016, Petitioner filed the instant federal
Petition for Writ of Habeas Corpus in this
Court. 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
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, ...