United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT
RESPONDENT’S MOTION TO DISMISS (Doc. 10) ORDER
DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDER
DIRECTING CLERK OF COURT TO SUBSTITUTE NAME OF PROPER
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
action, Respondent contends the petition for writ of habeas
corpus was not filed timely. The Court agrees and recommends
the petition be DISMISSED.
instant petition was filed on January 15, 2016. On February 1,
2016, the Court ordered Respondent to file a response within
sixty days. (Doc. 5). On April 1, 2016, Respondent filed the
instant motion to dismiss the petition as untimely. (Doc.
10). On May 4, 2016, Petitioner filed his opposition to the
motion to dismiss. (Doc. 13). On June 20, 2016, Respondent
filed a reply. (Doc. 16).
Procedural Grounds for Motion to Dismiss
mentioned, Respondent has filed a Motion to Dismiss the
petition as being filed outside the one year limitations
period prescribed by Title 28 U.S.C. § 2244(d)(1). Rule
4 of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court . . . .” Rule 4 of the Rules Governing Section
Ninth Circuit has allowed Respondent’s 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.
Limitation Period For Filing Petition For Writ Of Habeas
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The AEDPA
imposes various requirements on all petitions for writ of
habeas corpus filed after the date of its enactment.
Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063
(1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc), cert. denied,
118 S.Ct. 586 (1997). The instant petition was filed on
January 15, 2016, and thus, it is subject to the provisions
of the AEDPA.
AEDPA imposes a one-year period of limitation on petitioners
seeking to file a federal petition for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). In most cases, the limitation
period begins on the date that the petitioner’s direct
review became final.
the Petitioner was convicted of second degree murder and
assault with a firearm, along with a number of sentencing
enhancements, and was sentenced to an indeterminate term of
42-years-to-life on June 9, 2008. (Lodged Document
(“LD”) 1). On January 27, 2010, the California
Court of Appeal, Fifth Appellate District
(“5th DCA”), affirmed the judgment on
direct appeal. (LD 2). On April 14, 2010, the California
Supreme Court denied the petition for review. (LD 4).
review would therefore have concluded on July 13, 2010, when
the ninety-day period for seeking review in the United States
Supreme Court expired. Barefoot v. Estelle, 463 U.S.
880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159
(9th Cir.1999); Smith v. Bowersox, 159
F.3d 345, 347 (8thCir.1998). Petitioner would then
have had one year from the following day, July 14, 2010, or
until July 13, 2011, absent applicable tolling, within which
to file his federal petition for writ of habeas corpus.
mentioned, the instant petition was filed on January 15,
2016, approximately four and one-half years after the date
the one-year period would have expired. Thus, unless
Petitioner is entitled to either statutory or equitable