United States District Court, E.D. California
CHERI L. GLOVER, Petitioner,
DERRAL ADAMS, Warden Respondent.
FINDINGS AND RECOMMENDATIONS TO: (1) GRANT
RESPONDENT'S MOTION TO DISMISS THE PETITION AS
TIME-BARRED (ECF NO. 16); AND (2) DENY PETITIONER'S
MOTION TO STAY AS MOOT (ECF NO. 2) THIRTY (30) DAY OBJECTION
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
Derral Adams, Warden of Central California Women's
Facility, 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 first degree
murder by lying in wait. (Lodged Doc. 1.) On October 1, 2012,
she was sentenced to a state prison term of life without the
possibility of parole. (Id.)
January 27, 2015, the California Court of Appeal for the
Fifth Appellate District struck a parole revocation fine but
otherwise affirmed the judgment. (Lodged Doc. 2). The
California Supreme Court denied review on April 29, 2015.
(Lodged Docs. 3-4.)
proceeded to file three petitions for writ of habeas corpus
in the California state courts as follows:
1. Kern County Superior Court Filed: July 5, 2016;
Denied: October 12, 2016;
2. California Court of Appeal, Fifth Appellate
District Filed: November 11, 2016; Denied: January 12,
3. California Supreme Court Filed: February 23,
2017; Denied: May 17, 2017.
(Lodged Docs. 5-10.)
March 9, 2017, Petitioner filed the instant federal petition
for writ of habeas corpus, as well as a motion to stay the
petition and hold it in abeyance pending resolution of her
petition in the California Supreme Court. On June 21, 2017,
Respondent filed a motion to dismiss. (ECF No. 16.) On July
7, 2017, Petitioner filed an opposition. (ECF No. 19.) On
July 14, 2017, Respondent filed a reply. (ECF No. 21.) The
matter stands ready for adjudication.
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, the
Court will review Respondent's motion to dismiss pursuant
to its authority under Rule 4.