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Lee v. Subia

December 12, 2008

KENNY INKWON LEE, PETITIONER,
v.
RICH SUBIA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dale S. Fischer United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the First Amended Petition, the Magistrate Judge's Report and Recommendation, the Objections to the Report and Recommendation filed October 23, 2008, the Response to Reply to Opposition to Motion to Dismiss First Amended Petition filed November 24, 2008, and all records in the file. Having made a de novo determination, the Court agrees with the recommendation of the Magistrate Judge.

The Objections complain that the Magistrate Judge failed to afford Petitioner an opportunity to file a reply to Respondent's reply brief in support of the motion to dismiss the petition for writ of habeas corpus. (Objections at 2.) The procedural history is set forth in the Magistrate Judge's Order dated October 27, 2008. (Dkt. No. 34.) Respondent's reply brief was filed on September 18, 2008. (Dkt. No. 26.) Local Rule 7-10 provides that "[a]bsent prior written order of the Court, the opposing party shall not file a response to the reply." On October 6, 2008, the Magistrate Judge issued a Report and Recommendation. On October 14, 2008, the Court received Petitioner's request for enlargement of time. The request did not identify the specific document that Petitioner intended to file and did not request permission to file a response to Respondent's reply brief. (Dkt. No. 30.) Because the only deadline Petitioner faced at the time was the October 29, 2008 date for filing objections to the Report and Recommendation, the Magistrate Judge explained that she assumed the request for enlargement of time pertained to Petitioner's filing of objections. (Dkt. No. 34.) On October 27, 2008, Petitioner clarified that his request for enlargement of time was directed to filing a response to Respondent's reply brief. (Dkt. No. 33.) The Magistrate Judge granted Petitioner's request and permitted Petitioner to file a response to the reply brief on or before November 24, 2008. (Dkt. No. 34.) Petitioner did so on November 24, 2008. (Dkt. No. 35.) Therefore, Petitioner's Objection is moot and the Magistrate Judge did not err.

Petitioner further argues that the statute of limitations does not bar his First Amended Petition because he is actually innocent. Petitioner contends that the evidence, both old and new, establish that "Petitioner was not personally armed, and did not fire a gun at the security guard." (Objections at 7.) At trial, the security guard (Nolasco) testified as follows on July 26, 1994:

Q: Did you think in your mind that this defendant had a gun when he pointed?

A: I think so, because I saw something black, something metallic.

Q: Did you think it was a gun?

A: Well, yes. If he's coming to rob, he's armed.

Q: All right. Did he point at you?

A: Yes, at me, there was no one else.

Q: There were no other people out in the parking lot?

A: No.

Q: How far away were you from this defendant when he ...


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