Alison

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 7 TERRENCE LAMAR WILBURN, Case No. 2:22-cv-01947-DJC-JDP (HC) Petitioner, FINDINGS AND RECOMMENDATIONS v. ECF No. 15 KATHLEEN ALISON, Respondent. 13 Petitioner Terrence Lamar Wilburn, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has moved to dismiss it as time-barred. ECF No. 15. I agree and recommend dismissal on that basis. No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically provided for in the rules but must be inferred from their structure and the Advisory Committee Notes.”). The Ninth Circuit construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases, however. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1991). Under Rule 4, I evaluate whether it “plainly…