The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATIONS Doc. Nos. 10 and 17
On August 25, 2008, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus challenging his state court sentence on the following grounds: (1) the use of upper terms in his sentencing was improper under the Cunningham line of cases; and (2) the use of his juvenile adjudication as a serious/violent felony prior conviction "strike" in determining his sentence violates the Ex Post Facto law. (Doc. No. 1 at 5-9.) Respondent moves to dismiss the petition as barred by the applicable statute of limitations pursuant to 28 U.S.C. § 2244(d). (Doc. No. 10.) Petitioner opposes the motion. (Doc. Nos.12 and 16.)
On February 6, 2009, Magistrate Judge Barbara Lynn Major issued a Report and Recommendations on the petition, recommending the court grant the motion to dismiss and dismiss the petition with prejudice. (Doc. No. 17, "R&R.") Petitioner filed objections on March 12, 2009. (Doc. No. 22.) Having carefully considered the thorough and thoughtful R&R, the record before the court, Petitioner's objections, and applicable authorities, the court adopts the R&R in its entirety.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report... to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980).
The court hereby incorporates by reference the factual and procedural Background presented in the R&R. (Doc. No. 17 at 2-3.)
The R&R concludes the instant petition is time-barred by the AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). In particular, the R&R finds Petitioner's limitations period began following the conclusion of his direct review in state court on October 6, 1998,*fn1 and that Petitioner is not entitled to a later start date under § 2244(d)(1)(C).*fn2 (R&R at 4-5.) In Petitioner's view, reiterated in his objections, he is entitled to a later start date because the United States Supreme Court established a "new constitutional rule of law" in Cunningham v. California, 549 U.S. 270 (2007), and that this rule applied retroactively to his conviction. (Doc. No. 16 at 1-2; Doc. No. 22 at 1-2.) The court agrees with the R&R's analysis that Cunningham, while retroactive to cases on collateral review, is not a new rule of constitutional law.*fn3 (R&R at 6.) To the extent Petitioner relies on Cunningham's predecessor cases, including Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), the court concurs with the R&R that none have been made retroactive.*fn4 Since neither Cunningham nor its predecessors satisfy both prongs of § 2244(d)(1)(C), these Supreme Court decisions do not afford Petitioner a delayed start to his limitations period.
The R&R also finds Petitioner is not entitled to statutory or equitable tolling. (R&R at 10-11.) In his objections, Petitioner argues equitable tolling should apply because to hold otherwise would allow the courts to use the AEDPA"as a crutch to deny a petitioner his fundamental and constitutional rights," ultimately creating a "miscarriage of justice." (Doc. No. 22 at 4.) These contentions do not amount to an "extraordinary circumstance" which prevented Petitioner from pursuing habeas remedies. The court concludes Petitioner is not entitled to statutory or equitable tolling.
Based on the foregoing, the court finds Petitioner's limitations period expired on October 7, 1999. The court therefore agrees with and adopts the R&R's conclusions that the instant petition is time-barred by the AEDPA statute of limitations.
For the reasons set forth above, the court ADOPTS the R&R in its entirety. (Doc. No. 17.) Accordingly, the court GRANTS Respondent's motion to dismiss (Doc. No. 10) and DISMISSES the Petition with prejudice. The Clerk of Court is instructed to close the case file.