The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: 1) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; 2) GRANTING RESPONDENT'S MOTION TO DISMISS; and 3) DENYING CERTIFICATE OF APPEALABILITY
On December 24, 2008, Magistrate Judge Lewis entered a Report and Recommendation ("R&R") recommending that Respondent's motion to dismiss be granted on grounds that the one-year statute of limitations period of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), precludes consideration of the merits of the Petition. On February 2, 2009, Petitioner timely filed his objections to the R&R. Having considered the R&R, Petitioner's objections, and the Court's record, the Court adopts Magistrate Judge Lewis' Report and Recommendation and grants Respondent's motion to dismiss.
The Court adopts the procedural background set forth in the R&R, which the Court briefly summarizes in the following timeline of events:
1/28/2000 Petitioner convicted of second degree murder and use of knife and sentenced to an indeterminate term of sixteen years to life imprisonment.
3/15/2002 Petitioner's conviction upheld by California Court of Appeal. 6/12/2002 California Supreme Court denies Petitioner's Petition for Review of Court of Appeal's decision. 8/12/2003 Petitioner signs and subsequently files a petition for writ of habeas corpus in San Diego Superior Court. 9/08/2003 San Diego Superior Court denies petition. 12/04/2003 Petitioner signs and subsequently files a petition for writ of habeas corpus in California Court of Appeal. 12/23/2003 California Court of Appeal denies petition. 12/31/2005 Petitioner signs and subsequently files a petition for writ of habeas corpus in California Supreme Court. 11/15/2006 California Supreme Court denies petition as untimely. 4/27/2008 Petitioner signs and subsequently files federal petition for writ of habeas corpus in instant case.
On July 22, 2008, Respondent Martel filed a motion to dismiss the petition in this case, arguing that it was filed beyond the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). On December 24, 2008, Magistrate Judge Lewis issued his R&R recommending that Respondent's motion be granted.
The R&R concludes that, absent any equitable or statutory tolling, Petitioner had until September 10, 2003 to file his federal habeas petition. Magistrate Judge Lewis found that Petitioner is entitled to statutory tolling for a period of twenty-seven days while the superior court petition was pending. Magistrate Judge Lewis also found that Petitioner is possibly entitled to eighty-seven days of statutory tolling for the time period between the filing of the superior court petition and the court of appeal petition, as well as thirteen days of statutory tolling for the time period during which the court of appeal petition was pending. Magistrate Judge Lewis correctly noted, however, that resolution of this question was not necessary -- even if Petitioner were credited with the eighty-seven days between filings and the sixteen days the court of appeal petition was pending, Petitioner would have only had until January 19, 2004 to file his federal petition.*fn1
Magistrate Judge Lewis then considered Petitioner's claim that he is entitled to equitable tolling for virtually the entire period between March, 2002 and March, 2008. Magistrate Judge Lewis carefully addressed each of Petitioner's claims and concluded that no equitable tolling is warranted.
Petitioner filed his objections to the R&R on February 2, 2009. Petitioner raises no specific objection to the findings set forth in the R&R, but contends that Magistrate Judge Lewis failed to consider Petitioner's psychiatric condition and inability to read English in the equitable tolling analysis.
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. "The district court must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); United States v. Raddatz, 447 U.S. 667, 676 (1980).
In his objections to the R&R, Petitioner claims he is entitled to equitable tolling because he is under psychiatric care and is taking medications and because his interpersonal style and the side effects of his medication make it impossible for him to effectively communicate with the court or understand filing deadlines. Petitioner contends that the R&R fails to properly account for his psychiatric condition and his inability to read English in the equitable tolling analysis. Although Petitioner's alleged mental incompetency as a basis for equitable tolling was presented for the first time in Petitioner's objection to Magistrate Judge Lewis' R&R, the Court will exercise its discretion to consider the claim. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (holding that "a district court has discretion, but is not required, to consider evidence presented for the first time a party's objection to a magistrate judge's recommendation.")
As recognized in the R&R, to be entitled to equitable tolling, Petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Lawrence v. Florida, 549 U.S. 327, 336 (2007). However, equitable tolling will not be available in most cases, as extensions of time will only be granted if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). ...