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Glover v. Adams

United States District Court, E.D. California

July 22, 2017

CHERI L. GLOVER, Petitioner,
v.
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 DEADLINE

          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 Derral Adams, Warden of Central California Women's Facility, 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 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.)

         On 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.)

         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: July 5, 2016; Denied: October 12, 2016;
2. California Court of Appeal, Fifth Appellate District Filed: November 11, 2016; Denied: January 12, 2017;
3. California Supreme Court Filed: February 23, 2017; Denied: May 17, 2017.

(Lodged Docs. 5-10.)

         On 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.[2] 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.

         II. 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, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.

         III. Statute ...


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