The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION Doc. No. 14
Ocie Ola Wright, Jr. ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in December 2008. Therein, Petitioner claims his guilty plea was involuntary, his Sixth Amendment right to a trial by jury was violated, and he received ineffective assistance of counsel. (Doc. No. 1 at 6-9.) Pending before the court is a motion by Respondent, the warden at the prison where Petitioner is incarcerated, to dismiss the petition as untimely under 28 U.S.C. § 2244(d). (Mot., Doc. No. 11.) Petitioner filed an opposition and accompanying exhibits. (Opp'n, Doc. Nos. 12 and 13.) Also pending are Petitioner's motions for an evidentiary hearing (Doc. No. 2), for untimely filing (Doc. No. 3),*fn1 and to appoint counsel for the petition (Doc. No. 10), and to appoint counsel on the issue of equitable tolling (Doc. No. 18).
On March 30, 2009, Magistrate Judge Peter C. Lewis issued a Report and Recommendations ("R&R") in which he advised the court to grant Respondent's motion, dismiss the petition, and deny Petitioner's remaining motions as moot. (Doc. No. 14.) Petitioner filed his objections on April 27, 2009. (Doc. No. 16.) The court observes Petitioner submitted additional objections as part of his motion to appoint counsel and reviews those accordingly. (Doc. No. 18, Decl.)
Having carefully considered the thorough and thoughtful R&R, the record before the court, Petitioner's objections, and the applicable authorities, the court ADOPTS the R&R IN ITS ENTIRETY. Furthermore, the court DENIES Petitioner's motion to appoint counsel on the issue of equitable tolling which was filed after the period set for objections to the R&R. (Doc. No. 18.)
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. (R&R at 2.)
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 expired on April 16, 2007, a full nineteen months before he filed the present federal petition. (R&R at 3-4.)
The R&R also concludes that, because Petitioner failed to file a state petition for habeas relief before the expiration of the one-year period, he is not entitled to statutory tolling. (R&R at 4-5.) The court agrees with this conclusion.
The R&R also recommends a finding that Petitioner is not entitled to equitable tolling. (R&R at 5-10.) The court reiterates, equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and is only appropriate where a habeas petitioner demonstrates "he has been pursuing his rights diligently, and...some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Furthermore, Petitioner must show the "extraordinary circumstances" he has identified, rather than merely a lack of diligence on his part, were the proximate cause of his untimeliness. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003).
In addressing the equitable tolling issue, the R&R focuses on the time during which the limitations period ran, namely April 2006 to April 2007. However, a total of 31 months expired between the time Petitioner's state judgment became final and the filing of his federal petition. Therefore, to prevail, Petitioner must demonstrate entitlement to ...