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Starling v. Asuncion

United States District Court, E.D. California

May 17, 2017

GREGORY W. STARLING, Petitioner,
v.
D. ASUNCION, Warden Respondent.

          FINDINGS AND RECOMMENDATIONS TO: (1) GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION AS TIME-BARRED (ECF NO. 11); AND (2) DENY PETITIONER'S MOTION TO STAY AS MOOT (ECF NO. 2)

          MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent D. Asuncion, Warden of California State Prison, Los Angeles County, is represented by Justain P. Riley of the Office of the California Attorney General.

         I. Procedural History

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern for attempted murder, assault with a firearm, and possession of a firearm by a felon. (Lodged Doc. 1.) On July 6, 2012, he was sentenced to an indeterminate state prison term of forty six years to life. (Id.)

         On November 14, 2014, the California Court of Appeal for the Fifth Appellate District affirmed the judgment. (Lodged Doc. 2). Petitioner did not seek review in the California Supreme Court.

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

1. Kern County Superior Court Filed: December 10, 2015; Denied: April 7, 2016;
2. California Court of Appeal, Fifth Appellate District Filed: June 13, 2016; Denied: June 30, 2016;
3. California Supreme Court Filed: July 12, 2016; Denied: October 12, 2016.

(Lodged Docs. 3-8.)

         On February 12, 2017, Petitioner filed the instant federal petition for writ of habeas corpus and a motion to stay the petition and hold it in abeyance pending his exhaustion of unspecified claims in state court.[2] On April 6, 2017, Respondent filed a motion to dismiss. (ECF No. 11.) Petitioner filed no opposition and the time for doing so has passed. The matter stands ready for adjudication.

         II. Statute of Limitations

         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 ...


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