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Tomlin v. Subia

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 16, 2008

GARY S. TOMLIN, PETITIONER,
v.
ROBERT SUBIA, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AS MODIFIED HEREIN, AND REFERRING BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS

[Doc 26]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On June 11, 2008, the Magistrate Judge issued Findings and Recommendation that the Motion to Dismiss be DENIED. This Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.

On July 10, 2008, Respondent filed timely objections to the Findings and Recommendation. On July 29, 2008, Petitioner filed a reply to Respondent's objections.

In his objections, Respondent argues that Petitioner should not be granted statutory tolling for the periods of time between the filings his second and third state petitions for writ of habeas corpus. Specifically, Respondent argues that the 99 and 96 day delays between the filings of his state habeas petitions was unreasonable under California law. The instant petition is untimely unless at least one of the periods of time is tolled.

In his objections, Respondent points out that under California law a petitioner must affirmatively "demonstrate [] that there was good reason to believe that further investigation would lead to facts supportive of a clearly meritorious claim." In re Clark, 5 Cal.4th 750, 781 n.17, 21 Cal.Rptr.2d 509, 521 (1993). In addition, Petitioner must demonstrate that he was diligent in investigating the facts underlying his claim. In re Robbins, 18 Cal.4th 770, 808, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). Although the delay must be justified under California, "[t]here are no standards for determining what period of time or factors constitute 'substantial delay' in non-capital cases," and "[t]here also are no standards for determining what factors justify any particular length of delay. King v. Lamarque, 464 F.3d 963, 966 (9th Cir. 2006).

Turning to the 99-day delay between the denial of his first petition and filing of his second state petition, for the reasons set forth by the Magistrate Judge in the Findings and Recommendation, such time appears reasonable because, independent of adding two additional claims, Petitioner substantially revised his claim of ineffective of counsel and wrote two letters to the Court of Appeal expressing his diligence in attempting to file his petition in that Court. Based solely on thecircumstances in this case, the Court finds that the 99-day delay appears reasonable under California law, and such time should be tolled.

However, turning to the 96-day delay between the denial of the second petition and filing of the third state petition, Respondent's argument is persuasive and such delay does not appear reasonable. Petitioner's third petition for writ of habeas corpus was a verbatim copy of the second state petition, with the exception of a brief statement of facts and the results of a polygraph examination he took in May of 2006, both which have no relation to the claims raised therein. Accordingly, Respondent's objection is persuasive and such time should not be tolled. However, because as Respondent points out, tolling of at least one of the intervals, results in the petition being timely.*fn1

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation, as modified here, is supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation issued June 11, 2008, is ADOPTED, as MODIFIED herein;

2. Respondent's Motion to Dismiss is DENIED; and,

3. The matter is referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.


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