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Pre v. Almager

November 29, 2007

REYNANTE PRE, PETITIONER,
v.
VICTOR M. ALMAGER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ADOPT REPORT AND RECOMMENDATION; REQUIRING RESPONDENT TO FILE ANSWER TO PETITION ORDER DECLINING TO

Petitioner Reynante Pre ("Petitioner"), a state prisoner proceeding pro se, has filed a federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Victor M. Almager ("Respondent") moved to dismiss, arguing that the Petition was time-barred pursuant to 28 U.S.C. § 2244(d). On October 16, 2007, Magistrate Judge William McCurine, Jr. filed a Report and Recommendation ("Report"), recommending that the Court grant the motion to dismiss. On November 5, 2007, Petitioner filed his objections. The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1(d.1). For the reasons outlined below, the Court DECLINES TO ADOPT the Report, DENIES Respondent's motion to dismiss, and ORDERS additional briefing.

I. BACKGROUND

On July 22, 2002, a jury convicted Petitioner in San Diego County Superior Court of attempted voluntary manslaughter, mayhem, torture, robbery, and burglary. (Lodgment 1.) On August 30, 2002, Petitioner was sentenced to a life term plus 13 years and 4 months in state prison. (Id. at 173--74, 200.) Thereafter, Petitioner appealed his conviction to the Fourth District Court of Appeal, Division One, where the judgment was affirmed. (Lodgment 3, 4, 5.) Petitioner then filed a petition for review in the California State Supreme Court. (Lodgment 7.) On June 30, 2004, the California Supreme Court denied Petitioner's petition for review. (Id.) On September 28, 2004 Petitioner's conviction became final when the 90-day period in which Petitioner could have sought certiorari in the United States Supreme Court expired. See Bowden v. Roe, 188 F.3d 1157, 1158--59 (9th Cir. 1999).

On September 17, 2005,*fn1 354 days after his conviction became final, Petitioner filed a state habeas petition in the San Diego County Superior Court, claiming ineffective assistance of both trial and appellate counsel. (Lodgment 8.) The court denied the petition for failure to state a prima facie case for relief. (Lodgment 9, Exhibit A.) On March 16, 2006, Petitioner filed a habeas corpus petition in the California Court of Appeal. (Lodgment 9.) Again, the petition was denied. (Id.) On October 10, 2006, Petitioner filed a habeas corpus petition in the California Supreme Court. (Lodgment 11.) On April 18, 2007, the California Supreme Court denied his petition and Petitioner's state habeas rights were exhausted. (Lodgment 12.) On May 16, 2007, Petitioner commenced these federal habeas proceedings. ///

II. LEGAL STANDARD

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "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)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).

III. DISCUSSION

The principal issue currently before the Court is whether Petitioner's claim for federal habeas relief was filed within the applicable statute of limitations. Having read and considered the Report and the Objections thereto, the Court concludes that the statute of limitations was extended by equitable tolling. Thus Petitioner's federal habeas petition is timely.

A. Report and Recommendation

On July 6, 2007, Respondent moved to dismiss the Petition, arguing it is barred because the one year statute of limitations has expired. See 28 U.S.C. § 2244(d). In opposition, Petitioner argued that the Court should find the statute of limitations equitably tolled because his access to the prison law library was impacted by a period of full or modified prison lockdowns between April 18 and May 16, 2007. Petitioner argued that these lockdowns prevented him from accessing a legal document copying service. Although Petitioner provided evidence of lockdowns from May 11, 2007 through May 17, 2007, the deadline for Petitioner to file his federal petition was April 29, 2007. Therefore, Magistrate Judge McCurine recommended, based upon the facts set forth by Petitioner in his opposition, that the statute of limitations had already expired and could not be extended by equitable tolling, and thus the motion to dismiss should be granted.

On November 5, 2007, in accordance with Magistrate Judge McCurine's Report, Petitioner filed an Objection to the Report ("Objection"). In his Objection, Petitioner provides additional evidence that the prison was on lockdown for additional dates between April 18 and May 16, 2007, thus preventing his access to legal document copying services before the April 29, 2007 deadline. Thus, this Court must address whether the statute of limitations was equitably tolled due to the prison conditions.

B. 28 U.S.C. § 2254 Statute of Limitations and Equitable Tolling

Petitioner's conviction became final on September 28, 2004 and he filed his state habeas petition on September 17, 2005. When the California Supreme Court finally denied his petition on April 18, 2007, ...


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