United States District Court, E.D. California
GREGORY W. STARLING, Petitioner,
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
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.
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.)
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
proceeded to file three petitions for writ of habeas corpus
in the California state courts as follows:
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.)
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. 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.
Statute of Limitations
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 ...