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Rogers v. Giurbino

September 27, 2007

ESAU ROGERS, PLAINTIFF,
v.
G.J. GIURBINO, WARDEN, DEFENDANT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

On June 15, 2006, Petitioner, a state prisoner proceeding pro se, filed his petition for writ of habeas corpus in this Court. Pursuant to 28 U.S.C. § 636, his petition was referred to Magistrate Judge Barbara Major for report and recommendation. On January 23, 2007, Judge Major issued her report and recommendation (the "R&R"), to which Petitioner filed objections.

I. Legal Standards

The district court has jurisdiction to review the magistrate judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned 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." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, the district court judge reviews those parts of the report and recommendation to which a party has filed a written objection. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Petitioner is proceeding pro se, the Court construes his pleadings liberally and affords him any benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Although the Court construes the pleadings liberally, however, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

II. Procedural History

The R&R's conclusions, and Plaintiff's objections, are based entirely on AEDPA's statute of limitations. The R&R has provided a thorough outline of the procedural history, to which no objections were filed and which the Court therefore ADOPTS. The following is a summary of key points of that procedural history.

On July 7, 1999, Petitioner was found guilty in California state court of possession of a firearm by a felon having three prior convictions, possession of a firearm concealed in a vehicle, and receiving stolen property. On September 20, 1999, he was sentenced to a term of twenty-five years to life in prison on the first count, plus two years for each of his two prison priors, which he admitted. Petitioner pursued appeals through the California courts, and his petition for review was finally summarily denied by the California Supreme Court on March 27, 2002. (Lodgment 3.)

On April 3, 2003, Petitioner filed a petition for writ of habeas corpus in the California Superior Court, arguing that ineffective assistance of counsel both at trial and on appeal. (Lodgment 4.) This was denied in its entirety on May 23, 2003. Eleven days later, Petitioner filed a habeas petition raising an identical claim with the California Court of Appeal. (Lodgment 6.) This was denied in a brief but reasoned opinion on August 15, 2003. (Lodgment 7.) On September 8, 2003, Petitioner raised the same claim in a habeas petition to the California Supreme Court. On February 23, 2004, however, Petitioner requested that his petition be withdrawn. The court, not yet having ruled on his petition, granted his request and on February 24, 2004, ordered his petition withdrawn.

Petitioner then began on a second round of state habeas claims based on different arguments. On January 16, 2005, Petitioner filed his second habeas petition in California Superior Court, arguing that the trial court erroneously denied his motion to suppress evidence, and that there was insufficient evidence to support his conviction.*fn1 (Lodgment 10.) The Superior Court denied this petition on March 15, 2005, stating that Petitioner failed to present sufficient facts and information upon which the writ could be granted.*fn2 (Lodgment 11.)

Petitioner filed a habeas petition in the California Court of Appeal approximately two weeks later. (Lodgment 12.) On May 3, 2005, the Court of Appeal denied his petition on procedural grounds, explaining that Florida v. J.L. was not a new case, having been decided five years previously, and therefore Petitioner had unreasonably delayed filing his petition. (Lodgment 13 at 1.) The Court of Appeal relied solely on In re Robbins, 18 Cal.4th 770, 780 (1998) for the principle that, in the absence of good cause, untimely petitions are procedurally barred. Petitioner then on May 23, 2005 filed a habeas petition with the California Supreme Court, raising the same arguments. The California Supreme Court on May 10, 2006 denied the petition, citing In re Lessard, 62 Cal.2d 497, 503 (1965) and several other cases.

On May 23, 2006, Petitioner filed his habeas petition in this Court.

III. Petitioner's Objections to the R&R

As the R&R correctly notes, this petition is subject to the time limitations of Antiterrorism and Effective Death Penalty Act ("AEDPA"). The R&R found the one-year limitations period began to run on June 26, 2002 and, in the absence of tolling, would have expired on June 25, 2003. (R&R at 10:3--5.) Petitioner filed his petition in this case on May 23, 2006, nearly three ...


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