Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner filed petition for writ of habeas corpus. The United States District Court for the Western District of Washington, Robert J. Bryan, J., dismissed petition sua sponte, and petitioner appealed. The Court of Appeals held that district court had authority to dismiss petition sua sponte on statute of limitations grounds.
Affirmed.
Page 611.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding.
Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Washington state prisoner Robert Faragher appeals pro se from the district court's sua sponte dismissal of his 28 U.S.C. § 2254 petition as barred by the statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 2253(d). We review de novo, see Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001), and we affirm.
In Herbst, we concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Id. Here, Faragher was provided adequate notice by the magistrate's order to show cause and its report and recommendation, which both recommended dismissal under § 2244(d), and an opportunity to respond through the filing of a response to the order to show cause and objections to the report and recommendation. Therefore the district court's dismissal of Faragher's petition was within its authority. Id.
AFFIRMED.