The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT GRANTING RESPONDENT'S AND RECOMMENDATION, AND MOTION TO DISMISS
This state prisoner habeas corpus matter is before the court on the Report and Recommendation ("R&R") of Magistrate Judge Barbara L. Major that this court: deny Respondent's Motion To Dismiss Petitioner James Lima's ("Lima") 28 U.S.C. § 2254 habeas Petition on statute of limitations grounds; grant Respondent's Motion To Dismiss twelve of the thirteen grounds Lima presents in his Petition as procedurally defaulted; and order Respondent to answer Claim 10. Both Respondent and Lima filed Objections to the R&R. Lima filed a Reply to Respondent's Objections. For the reasons discussed below, the R&R is ADOPTED IN PART and REJECTED IN PART, and Respondent's Motion is GRANTED.
As recited in the R&R, and without objection from either Respondent or Lima, Lima is serving a sentence of twenty years in prison for his convictions of conspiracy to commit residential robbery, two counts of residential robbery, false imprisonment by menace, and felonious evasion of a police officer, and a consecutive term of twenty-five years to life for his first-degree murder conviction. Those convictions resulted from a residential robbery and subsequent high-speed chase in February 1999. For federal purposes, after two trials, Lima's conviction became final in 2004. Respondent moves to dismiss the Petition on grounds it is barred by the one-year statute of limitations and Lima procedurally defaulted his claims in state court by raising them in an improper manner, barring federal review. Respondent's Motion To Dismiss thus asserts only procedural obstacles to this court reaching the merits of Lima's claims.
1. Reports And Recommendations
A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED.R.CIV.P. ("Rule") 72(b); see 28 U.S.C. § 636(b)(1). The district judge may also "receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. The district judge "shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Rule 72(b); United States v. Raddatz, 447 U.S. 667, 676 (1980). The court also reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995).
"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal courts review petitions for habeas relief from state prisoners filed after April 24, 1996 under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 327 (1997). Lima's crimes were committed in February 1999, and all state and federal procedural history occurred after AEDPA's effective date.
AEDPA provides a one-year statute of limitations applicable "to all habeas petitions filed by persons in 'custody pursuant to the judgment of a state court.'" 28 U.S.C. § 2244(d)(1). As pertinent here, "[t]he 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 time for seeking such review. . . ." 28 U.S.C. § 2244(d)(1). Lima's case became final within that definition on October 26, 2004, ninety ...