The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
1)ADOPTING MAGISTRATE JUDGE ADLER'S R&R; 2) GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR EQUITABLE TOLLING [DOC. NO. 10]; AND 2) GRANTING RESPONDENT'S MOTION TO DISMISS [DOC NO. 5]
Before the Court is Respondent G.J. Giurbino's ("Respondent") Motion to Dismiss Petitioner Arthur Wilson's ("Petitioner") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and Petitioner's Motion for Equitable Tolling of Time. [Doc. Nos. 1, 5-6, 10-12.] Magistrate Judge Jan M. Adler has filed a Report and Recommendation ("R&R") recommending that Petitioner's Motion for Equitable Tolling of Time be granted in part and denied in part, and Respondent's Motion to Dismiss be granted. [Doc. No. 13.] Petitioner timely filed an Objection to the R&R. [Doc. No. 14.] The Court has determined that the issues presented below are appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the reasons set forth below, this Court ADOPTS the R&R, and DENIES the Petition in its entirety.
On May 16, 2002, in a retrial in the San Diego County Superior Court, a jury convicted Petitioner of assault with a deadly weapon on a peace officer and resisting an executive order, and found that Petitioner had two prior strike convictions. (See Resp't's Lodgm't No. 1 at 166-69.) Petitioner was sentenced to serve thirty-one years to life in a state prison. (See id. at 216-17, 249.)
On June 20, 2002, Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court. (See Resp't's Lodgm't No. 2.) The petition was amended on July 3, 2002, and denied on July 16, 2002. (See Resp't's Lodgm't Nos. 3, 4.) On June 26, 2002, Petitioner filed a timely Notice of Appeal, directly appealing the verdict to the California Court of Appeal. (See Resp't's Lodgm't No. 1 at 218.) On March 24, 2003, Petitioner filed a Petition for a writ of habeas corpus in the California Court of Appeal, asserting the same claims raised in his previous petition. (See Resp't's Lodgm't No. 8.) On May 28, 2003, the court issued an order that it would consider Petitioner's petition concurrently with his direct appeal. (See Resp't's Lodgm't No. 9.) On January 6, 2004, the court denied Petitioner's direct appeal and his habeas petition. (See Resp't's Lodgm't Nos. 7, 10.) Petitioner did not seek further direct review.
On August 11, 2004, Petitioner constructively filed a petition for writ of habeas corpus in the California Supreme Court by delivering it to prison officials for mailing. (See Resp't's Lodgm't No. 12.); In re Jordan, 4 Cal. 4th 116, 119 (1992) (reaffirming the prison-delivery rule, which allows timely filing by delivery to prison officials within the statutory deadline). On July 20, 2005, the petition was summarily denied. (See Resp't's Lodgm't No. 13.)
On May 2, 2006, Petitioner constructively filed the instant Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of California, by delivering it to prison officials for mailing, alleging that (1) he was denied adequate assistance of counsel, which deprived him of a fair trial; (2) he was denied due process and a fair trial when the prosecutor failed to preserve material evidence; (3) his conviction was based on insufficient evidence; and (4) his sentence was improperly imposed. [Doc. No. 1.]; See Patterson v. Stewart, 251 F.3d 1243, 1245 n.2 (9th Cir. 2001) (holding that a petition is deemed constructively filed at the time it is delivered to prison officials to be mailed to the court). On June 12, 2006, Respondent filed a Motion to Dismiss the Petition, asserting that the petition was time-barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). (See Mot. to Dismiss at 4-5.) Petitioner filed a Motion for Equitable Tolling of Time and Respondent filed an Opposition to Equitable Tolling. [Doc. Nos. 8, 10.]
Magistrate Judge Adler issued an R&R, recommending that Petitioner's Motion for Equitable Tolling of Time be granted in part and denied in part, and Respondent's Motion to Dismiss be granted. (See R&R at 13.) On February 23, 2007, Petitioner timely filed an Objection to the R&R. [Doc. No. 14.]
The duty of the district court in connection with a magistrate judge's report and recommendation in habeas cases is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and in 28 U.S.C. § 636(b)(1). When an objection is made, the Court must make a de novo determi-nation as to those parts subject to objection. See United States v. Raddatz, 447 U.S. 667, 676 (1980). In this case, Petitioner has filed an Objection to the R&R. Accordingly, this Court will conduct a de novo review of the conclusions of law and the findings of fact to which Petitioner has objected.
In the R&R, the Magistrate Judge recommends Respondent's Motion to Dismiss be granted because Petitioner's petition was not timely filed, and not brought within the applicable one-year statute of limitations by statutory or equitable tolling. (See R&R at 13.) For the reasons set forth below, this Court ADOPTS the R&R, GRANTS IN PART AND DENIES IN PART Petitioner's ...