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Tanner v. Kramer

November 3, 2006

R. RASHAD TANNER, PETITIONER,
v.
M.C. KRAMER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER (1) SUSTAINING OBJECTIONS TO REPORT AND RECOMMENDATION AND (2) REMANDING FOR RECONSIDERATION

I. BACKGROUND

Petitioner, a state prisoner proceeding pro se, filed the instant § 2254 petition for a writ of habeas corpus on April 10, 2006. Petitioner challenges his October 27, 1995 conviction in San Diego Superior Court for robbery, assault with a semiautomatic firearm, and possession of marijuana for sale, for which he was sentenced to approximately twenty-four years in prison. Respondent now moves to dismiss the petition on the ground that the petition is time-barred. On September 11, 2006, Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation ("R&R") recommending that the motion be granted.

Both petitioner and respondent filed timely objections to the R&R. The objections raise the issues of (1) whether the R&R correctly tolls the statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and (2) whether the R&R correctly determined that Petitioner was not entitled to equitable tolling. After reviewing the papers de novo as well as the parties' objections, the court finds that resolution of these issues is not possible given the current state of the record. Therefore, the court REMANDS the petition to the magistrate for the issuance of a new R&R consistent with this order.

II. STANDARD OF REVIEW

The duties of the district court in connection with a magistrate judge's R&R are set forth in the Federal Rules of Civil Procedure Rule 72(b) and 28 U.S.C. § 636. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980).

III. PETITIONER'S STATE PROCEEDINGS

Petitioner's conviction became final on July 22, 1997 when the California Court of Appeal issued a remittitur after affirming Petitioner's conviction. See Lodgment 2. Years later, on March 3, 2004, Petitioner filed a habeas petition in the California Supreme Court ("CSC"). On December 22, 2004, the CSC denied the petition (the "CSC Petition") for lack of timeliness, citing In re Robbins, 18 Cal. 4th 770, 780 (1998) (noting that habeas petition is not entitled to presumption of timeliness when filed more than ninety days after the final due date for filing of appellant's reply brief on the direct appeal). In papers submitted with the instant petition, Petitioner alleges that he has filed other state habeas petitions in addition to the CSC Petition, but Petitioner has not produced any evidence of these additional petitions.

With these state proceedings in mind, the court now addresses the parties' objections.

IV. TOLLING UNDER AEDPA

A. AEDPA's Statute of Limitations

AEDPA provides a one-year statute of limitations for state prisoners to file complaints in federal court seeking collateral review of their state convictions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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