The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding with appointed counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.
On April 18, 2007, the Magistrate Judge filed amended findings and recommendations (Doc. 103) herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations, and responses thereto, have been filed (Docs. 104, 108, 112, and 123; 107, 124, 128, 129 ,131, 133, and 136).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72- 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Petitioner generally objects to the findings and recommendations on the grounds that the Magistrate Judge erred in his determination that the claims addressed do not relate back to the original petition. The court finds those objections have no merit. Petitioner also objects to the Magistrate Judge's determination that Petitioner is not entitled to equitable tolling. In addition to the grounds he raised in his opposition to the motion to dismiss, Petitioner raises two additional grounds for entitlement to equitable tolling: (1) that he was required to comply with the state habeas pleading requirements and, (2) that Respondent waived the statute of limitations or misled Petitioner regarding the state's position on the timeliness issue by agreeing to extensions of time and not opposing the requests to hold the case in abeyance while he exhausted his claims in state court.
Neither of these new grounds are sufficient for finding equitable tolling applies.
As the Magistrate Judge addressed in the findings and recommendations, in order to prevail on the issue of equitable tolling, a prisoner must demonstrate (1) extraordinary circumstances beyond the prisoner's control that (2) made it impossible to file a petition on time. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). Petitioner fails to show how complying with the state pleading requirements is such an extraordinary circumstance that it was impossible for him to file a timely petition. In addition, the court finds no merit to his argument that Respondent waived the statute of limitations or misled Petitioner on his position. As Petitioner concedes, there was no affirmative waiver by Respondent, and simply agreeing to extensions of time and not opposing a request to hold the case in abeyance is insufficient to find Respondent constructively waived that affirmative defense.*fn2
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed April 18, 2007, are adopted in full;
2. Respondent's motion to dismiss (Doc. 56) is granted in part and denied in part;
3. The following claims are found to relate back to the original petition and, therefore, are considered timely:
Claim A Claim B Claim Q: only to the initial search of the dwelling where petitioner and Lonnie lived and to Lonnie's statements Claim Z Claim DD: only to the insufficiency of evidence instruction Claim HH Claim JJ Claim MM Claim PP Claim QQ: only to the claim that the prosecutor mislead the jury when she stated that the always thought that petitioner was the murderer Claim TT Claim XX ...