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Montgomery v. Marshall

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 13, 2009

SECEL ROMERIOUS MONTGOMERY, SR. PETITIONER,
v.
JOHN MARSHALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: R. Gary Klausner United States District Judge

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the petition, the magistrate judge's report and recommendation, respondent's answer, petitioner's reply (styled as a "traverse"), and petitioner's objections to the report and recommendation.

The Court agrees with the recommendation of the magistrate judge that the petition should be dismissed with prejudice because the state court parole determination is not an unreasonable application of federal law, see Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445 (1985), and did not involve an unreasonable determination of fact.

In his objections, petitioner contends, for the first time, that his delay in pursuing his grounds for relief in state court was not unreasonable and that, therefore, this petition is not time barred. The court observes, first, that this issue is purely academic given that petitioner's grounds fail on the merits for the reasons set forth in the report and recommendation. Moreover, the district court is not required to consider facts or legal claims raised for the first time by objection. U.S. v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).

In any event, petitioner essentially contends that his delay in pursuing his collateral claims in state court was approximately 15 days shorter than that calculated by the magistrate judge due to delay in his receipt of mail. Even if true, the delay still appears to be unreasonable and the petition is still, therefore, untimely. As the magistrate judge pointed out, petitioner waited 355 days after the Board's decision became final before he filed his first petition in state court, which left him only 11 days to meet the AEDPA limitations period. See 28 U.S.C. § 2244 (d) (1) (1996). Even assuming petitioner did not receive notice that his state superior court petition was denied until March 6, 2008, he still waited nearly four months -- an additional 118 days -- to file his petition in the state court of appeal on July 2, 2008. Given that even sixty days may be too long to delay in California, see Evans v. Chavis, 546 U.S. 189, 201 (2006), this nearly four-month delay is too long. The justification petitioner offers for his delay, essentially that he had only limited access to the law library during this time, is not sufficient given that petitioner raised the same grounds and presented the same case and statutory law in support in both petitions. (See Documents No. 4 and No. 5 lodged with respondent's answer.)

Accordingly, IT IS ORDERED THAT:

1. The report and recommendation is accepted.

2. Judgment shall be entered consistent with this order.

3. The clerk shall serve this order and the judgment on all counsel or parties of record.

20090513

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