The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING THE MAGISTRATE JUDGE'S REPORT; GRANTING RESPONDENT'S MOTION TO DISMISS; AND DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY
Petitioner, a state prisoner appearing pro se, filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254, challenging the decision to deny him parole. Respondents filed a motion to dismiss the instant petition as untimely, to which petitioner filed an opposition. The Honorable Jan M. Adler, United States Magistrate Judge, issued a report and recommendation ("Report") recommending the motion to dismiss be granted. Petitioner filed objections to the Report. After a careful consideration of the pleadings and relevant exhibits submitted by the parties, and for the reasons set forth below, this Court OVERRULES petitioner's objections; ADOPTS the magistrate judge's Report; GRANTS respondents' motion to dismiss; and DISMISSES the petition for writ of habeas corpus as untimely.
Petitioner's conviction at issue here occurred on June 27, 1995, after an agreed upon non-jury trial that resulted in a conviction for second degree murder with enhancements with the use of a firearm in exchange for the dismissal of the 16 remaining counts. Petitioner filed a notice of appeal of that conviction on June 28, 1995 and the California Court of Appeal affirmed the conviction in a reasoned opinion filed July 12, 1996. Petitioner did not file a petition for review of that denial before the California Supreme Court.
On September 21, 1998, petitioner filed a petition for writ of habeas corpus before the San Diego Superior Court challenging his June 27, 1995 conviction on the grounds that the trial court erred in failing to provide a Cambodian interpreter and that he was afforded ineffective assistance of counsel for failing to object to hearsay evidence at the preliminary hearing that had formed the basis of his "slow plea." The San Diego Superior Court denied the petition as untimely on October 15, 1998. The same claims were then raised by petitioner in a petition filed before the California Court of Appeal on March 28, 2001. That petition was denied as untimely and on the merits on June 26, 2001.
Petitioner then filed, on March 27, 2006, another petition for writ of habeas corpus before the San Diego Superior Court alleging the claims he presents in the instant petition: ineffective assistance of counsel due to failure to request a Cambodian interpreter during the non-jury trial and trial court error due to failure to provide a Cambodian interpreter at trial. The San Diego Superior Court denied that petition on May 22, 2006 for lack of a prima facie showing for relief, for raising claims previously raised and denied, and for failing to justify the eleven year delay in presenting his claims. The same claims were presented again by petitioner in a habeas petition filed on June 23, 2006 before the California Court of Appeal. The California Court of Appeal denied that petition, concluding the petition was procedurally barred as untimely, the issues presented had been previously raised and denied and petitioner had failed to present a prima facie claim for relief. Petitioner's last collateral attack on this conviction in state court occurred on December 4, 2006, when petitioner filed a petition for writ of habeas corpus before the California Supreme Court alleging the same claims presented in the instant case. The California Supreme Court denied that petition on May 16, 2007, citing In re Robbins, 18 Cal.4th 770, 780 (1998)(petitioner must show good cause for substantial delay) and People v. Duvall, 9 Cal.4th 464, 474 (1995)(petitioner must state a prima facie case for relief to avoid summary denial of petition).
The instant petition was filed in this Court on August 1, 2007, alleging the same two claims presented in his final three petitions filed in state court.*fn2 Respondent filed a motion to dismiss the petition as untimely on November 20, 2007 and petitioner filed his opposition to the motion on December 20, 2007. The Report was issued on April 21, 2008. Petitioner's objections to the Report were filed on May 16, 2008. Respondent did not file a reply to petitioner's objections.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in Title 28, United States Code, Section 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).
Respondent moves to dismiss the petition on the grounds that the petition was untimely filed. The magistrate judge found the petition untimely and, thus, recommended that respondents' motion be granted.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. The limitation period begins on 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)(A). In the Ninth Circuit, the period of "direct review" includes the ninety-day period within which a petitioner can file a petition for a writ of certiorari regardless of whether the petitioner seeks such review. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). AEDPA's statute of limitation is subject to statutory tolling which tolls the statute during the time petitioner is pursuing his state post-conviction remedies. 28 U.S.C. § 2244(d)(2). The one-year statute of limitations is also subject to equitable tolling. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). However, the Ninth Circuit in Beeler noted that "equitable tolling will not be available in most cases, as extensions of time will only be granted if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." Id. (quoting ...