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Guillen v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 28, 2009

ANTHONY T. GUILLEN PETITIONER,
v.
MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION RE: GRANTING MOTION TO DISMISS

On June 29, 2009, Magistrate Judge Cathy Ann Bencivengo entered a Report and Recommendation granting Respondent's motion to dismiss the Petition for writ of habeas corpus as time barred ("R & R"). The R & R, expressly incorporated herein, thoroughly and thoughtfully analyzed Petitioner's claims. Petitioner has filed objections to the R & R ("Objections"). Respondent did not file a reply to the Objections. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument.

In his Objections, Petitioner sets forth essentially the same arguments raised in the Petition. He argues that the ten year extension to his sentence under Cal.Penal Code §667(a)(1) is not subject to the one year limitation period of 28 U.S.C. §2241(d)(1) because the California Supreme Court order denying his petition for review of sentence advised him that "because this issue is a matter outside the record on appeal, the proper remedy is by way of petition for a writ of habeas corpus." (Doc. No. 8, Exh. 2). Because Petitioner's ten year extension was an integral part of his sentence, the one year limitation period of 28 U.S.C. §2241 applies to bar Petitioner's claims.

In sum, the court denies the Objections and adopts the R & R in its entirety. The Clerk of Court is instructed to close the file.

IT IS SO ORDERED.

20090828

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