The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner filed his first federal petition for writ of habeas corpus on August 10, 2007, in case number 07cv1592. This was dismissed on September 6, 2007 because Petitioner did not use the proper form, but he was advised he could have the case reopened by filing a First Amended Petition no later than November 5, 2007. He was sent a copy of the form to use.
His First Amended Petition was accepted for filing on September 21, 2007 but dismissed again without prejudice on September 28, 2007 for failure to name a proper respondent and for failure to allege exhaustion of state judicial remedies. The form he was sent included an area to describe how he exhausted his claims in state court, but he left this blank. Petitioner was advised about exhaustion of state remedies both in this order and in a separate notice issued November 11, 2007. The order informed Petitioner he could have the case reopened by filing an amended petition no later than November 16, 2007.
Petitioner then submitted four other documents: an application for appointment of counsel, a cover page to his dismissed petition specifying his demand for an evidentiary hearing, a second application for appointment of counsel, and a renewed request to be allowed to amend the cover page to his dismissed petition. These were rejected by discrepancy orders showing the case was closed, and the submitted documents were returned to Petitioner. (Docket numbers 7--10.) The last of these documents was rejected on January 7, 2008.
By a letter dated October 23, 2008, Petitioner submitted an inquiry asking about the status of his case. This too was rejected by discrepancy order, which explained that Petitioner needed to file a new petition. All these documents were filed in case number 07cv1592. Petitioner then filed a new petition (the "Petition") in this case,*fn1 and it is this new Petition which is currently under consideration.
The pending Petition was accepted for filing on November 24, 2008. Respondent then moved to dismiss it as untimely. The motion was fully briefed and referred to Magistrate Judge Ruben Brooks for report and recommendation pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d). On July 29, 2009, Judge Brooks issued his report and recommendation (the "R&R") finding the current Petition was untimely and recommending it be denied on that basis. Petitioner then filed a notice of change of address, a motion for extension of time to file objections to the R&R, and another motion for appointment of counsel. On September 11, 2009, the Court denied his request for appointment of counsel but granted Petitioner's request for an extension of time. Petitioner then filed his objections to the R&R ("Objections"), which were accepted for filing on September 25, 2009.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "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)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection.
Petitioner has filed detailed page-by-page objections to the R&R supported by over a hundred pages of exhibits. Most of the objections focus on matters Petitioner believes the R&R should have included but did not, and in many of them he agrees with the R&R's findings. In any event most are not cognizable on federal habeas review, or would not affect the Court's ruling even if they were sustained.
The R&R determined the second federal Petition, filed in this case on November 24, 2008, was untimely under AEDPA, 28 U.S.C. § 2244(d). If this is correct, the only relevant portions of Petitioner's Objections to the R&R are found at 1--2:18 and 3:11-17, and the remaining objections, even if they were cognizable, would pertain to time-barred claims.
The R&R made factual findings regarding the dates Petitioner's conviction became final, the date he filed his first state habeas petition, and the date his final state habeas petition was denied, and the time during which he was not pursuing any state appellate or habeas relief. (R&R at 3:18--4:3, 6:22--7:18.) Petitioner has not objected to these factual findings, which the Court therefore ADOPTS. The R&R's findings show Petitioner's conviction became final on October 24, 2005. AEDPA's one-year limitations period then ran for nearly ten months until August 18, 2006, when he submitted his first state habeas petition. After the state supreme court denied his habeas petition on July 11, 2007, he filed his initial federal petition on August 10, 2007. At this point, nearly eleven months of the one-year limitations period had run.
As discussed above, the first federal petition was dismissed and Petitioner failed to file an amended petition within the time permitted. The period during which a federal habeas petition is pending does not toll AEDPA's one-year limitations period, Duncan v. Walker, 533 U.S. 167, 181 (2001), so the time continued to run throughout this whole period. Over a year after his first federal petition was dismissed, he filed the pending Petition. This was sixteen months after the state supreme court denied his habeas petition. Because the state petition was filed nearly ten months after his petition became final, over two years and two months passed before Petitioner filed the currently pending Petition. (R&R at ...