The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION; and (2) DISMISSING THE PETITION FOR PREJUDICE WRIT OF HABEAS CORPUS WITH
Before this Court is Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R") recommending that the Court grant Respondent Ken Clark's ("Respondent") motion to dismiss the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.§ 2244(d) with prejudice. This court has considered the Petitioner Roberto Carlos Ruiz's ("Petitioner" or "Ruiz") Petition, Respondent's Motion to Dismiss, and all supporting documentation submitted by the parties. Having considered these documents, this Court ADOPTS the R&Rand DISMISSES Ruiz's Petition for Writ of Habeas Corpus with prejudice.
A jury convicted Petitioner of forcible rape, attempted forcible oral copulation, two counts of forcible sodomy, two counts of first degree robbery, making a criminal threat, dissuading a witness by force or threat, two counts of oral copulation in concert, two counts of forcible oral copulation, and sodomy while acting in concert. The jury found that Petitioner used a knife in the commission of all counts. Further, in the convictions of forcible rape, attempted forcible oral copulation, and sodomy of victim Betty R., the jury determined that Petitioner used a deadly weapon, a knife, in violation of Cal. Penal Code § 12022.3(a). Petitioner appealed the conviction to the California Court of Appeal. On June 28, 2004, the court unanimously upheld the conviction (Lodgment No. 1). Petitioner did not appeal his conviction to the California Supreme Court. (Pet. at 4). Thus, the judgment became final 40 days after the California Court of Appeal's decision on August 7, 2004.
On July 12, 2004, while his appeal was pending, Petitioner filed a petition for writ of habeas corpus in the San Diego County Superior Court. (See Attachment to Pet. at 2). The superior court denied the petition on October 7, 2004. (Exhibit attached to Lodgment 2; see also Attachment to Pet. at 2). On December 17, 2004, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment No. 2). The appellate court denied the petition on February 7, 2005. (Lodgment No. 3). On April 29, 2005, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, and the court denied the petition on March 29, 2006, without citation or comment. (Lodgment No. 4).
On June 20, 2007, Petitioner filed a second petition for writ of habeas corpus in the San Diego County Superior Court. (See Attachment to Pet. at 3). The superior court denied the petition in an order filed on July 5, 2007. (Attachment to Pet. at 4). On July 26, 2007, Petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal. (Lodgment No. 5). The appellate court denied the petition on October 9, 2007. (Lodgment No. 6). On December 19, 2007, Petitioner filed a second petition for writ of habeas corpus in the California Supreme Court. The Supreme Court denied the petition on June 11, 2008. (Lodgment No. 7; see Attachment to Pet.).
Petitioner filed the current federal habeas petition before this court on July 24, 2008. [Doc. No. 1.] On February 4, 2009, Respondent filed a Motion to Dismiss the Petition, asserting that the petition was time-barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Petitioner requested [doc. nos. 9, 11, 13], and the Court granted, three time extensions to file his Opposition [doc nos. 10, 12, 14]. On July 9, 2009, Petitioner filed a one-page Opposition.
Magistrate Judge Jan Adler filed an R&R on August 11, 2009. Petitioner filed objections to the R&R on September 8, 2009.
I. Statute of Limitations for Federal Habeas Corpus Petitions
Unless tolled, the AEDPA imposes a one-year statute of limitations to petitions seeking habeas corpus relief. See Evans v. Chavis, 546 U.S. 189, 189 (2006). The one-year statute of limitations shall run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). A state post-conviction application tolls the statute of limitations only for "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). Under California's collateral review system, a petitioner must file an original petition for writ of habeas corpus with each court within a reasonable period of time. Carey v. Saffold, 536 U.S. 214, 221-22 (2002). If the time period between filings is reasonable, then the state petition is "pending" between filings and the statute of limitations is tolled for the entire time period that the petitioner is pursuing his state collateral review process. Id. at 222-223.
II. Reviewing Magistrate Judge's R&R
A district court may designate a magistrate judge to propose recommendations in connection with the disposition of "applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement."
28 U.S.C. § 636(b)(1). A party may object within ten days after being served with a copy of the magistrate judge's proposed findings. Id. The district judge shall then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district judge "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); Fed. R. Civ. P. 72(b)(3) (2009); see also United States v. Raddatz, 447 U.S. 667, 676 (1980) ("[I]n providing for a 'de novo determination' . . . Congress intended to ...