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Gunn v. Salazar

March 27, 2009

KEVIN ORLANDO GUNN, PETITIONER,
v.
J.F. SALAZAR, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Kevin Gunn ("Gunn"), a state prisoner, filed his federal habeas petition in this Court on May 22, 2008. (Dkt. No. 1.) Pursuant to 28 U.S.C. § 636, his petition was referred to Magistrate Judge William McCurine for a report and recommendation ("R&R"). Respondent Salazar ("Salazar") filed a motion to dismiss Gunn's petition on August 26, 2008. (Dkt. No. 14.) Judge McCurine issued his R&R on December 5, 2008 recommending that the Court grant Salazar's motion to dismiss. (Dkt. No. 17.) Gunn filed an objection to the R&R on January 2, 2009. (Dkt. No. 18.)

The R&R is devoted exclusively to the timeliness of Gunn's petition. Under the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), state prisoners have one year, absent tolling, to file a federal habeas petition -- starting on the date the judgment against them in state court is final. 28 U.S.C. § 2244(d). Salazar argues that Gunn waited over two years to file his petition. Gunn, on the other hand, believes he filed just before a full year expired. The Court agrees with the R&R that Salazar has the better argument and GRANTS Salazar's motion to dismiss.

I. Legal Standards

This Court has jurisdiction to review a magistrate judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civl. P. 72(b) et seq. "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). This Court does not need to review de novo "findings and recommendations that the parties themselves accept as correct." Id.

Because Gunn is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

II. Procedural History

The R&R covers the history of Gunn's conviction and state habeas proceedings in great detail. From the Court's perspective, the essentials are as follows.

Gunn was convicted in September, 1999 and is now in prison serving a 17-year sentence.

On November 9, 2004, Gunn's conviction became final. His one-year statute of limitations to file a federal habeas petition began to run the following day, November 10, 2004. Gunn does not dispute this. (Obj. to R&R at 2.)

Gunn filed a state habeas petition on November 1, 2005 in the California Superior Court, thereby tolling the statute of limitations period for his federal habeas petition ten days before it would expire. Again, Gunn does not dispute this. (Id.)

From November 1, 2005 through February 1, 2008, Gunn litigated his state habeas petition.

On May 22, 2008, Gunn finally filed his federal habeas ...


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