IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 20, 2009
RODNEI C. FRAZIER, PETITIONER,
TONY HEDGEPETH, WARDEN, RESPONDENT.
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 12, 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 and attached an additional 234 pages of medical records.
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, with one exception.
Petitioner contends his sciatic nerve has not been repaired. (Objections at 1-2.) Rather, after his sciatic nerve was damaged, he had surgery to correct a severe contracture to his left knee. (Id.) Accordingly, the court will disregard the last sentence of page seven of the findings and recommendations. Instead the court notes that given the nature of petitioner's medical condition and the numerous operations required and the severe pain involved, the court would grant petitioner equitable tolling for the years 1996 through March 9, 1999, after he had surgery to correct a severe contracture to his left knee. Nevertheless, as the magistrate judge found, because petitioner is still not entitled to equitable tolling for the entire period, his petition is time-barred.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 12, 2008, are adopted as amended above; and
2. Respondent's April 11, 2008 motion to dismiss (Docket No. 11) is granted.
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