The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On September 9, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.
Petitioner raises, for the first time, a claim that he is entitled to the "actual innocence'gateway' exception that was first introduced in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993)." (Objs. at 4.) Petitioner contends the magistrate judge and respondent "totally ignored" this exception. However, although petitioner included a claim of actual innocence in his amended petition, he failed to raise this exception in his opposition to the motion to dismiss and presented no evidence in support of his claim of actual innocence, either in his opposition or his amended petition.
A credible claim of actual innocence will excuse a habeas petitioner's procedural default. See Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851 (1995). However, neither the Supreme Court nor the Ninth Circuit Court of Appeals has decided that such a claim will toll the one-year statute of limitations. See Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002). Assuming such an exception exists, petitioner has failed to meet his burden of showing that there is "new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial" which would prove that he is factually innocent. Schlup, 513 U.S. at 324.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 9, 2008, are adopted in full;
2. Respondents' April 8, 2008 motion to dismiss is granted; and
3. This action is dismissed as barred by the statute of limitations.
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