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Baker v. Hornbeak

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 27, 2010

PAMELA J. BAKER, PETITIONER,
v.
TINA HORNBEAK, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY

Pamela J. Baker has filed a Petition for a Writ of Habeas Corpus challenging her state conviction and sentence. On November 18, 2009, Magistrate Judge Battaglia filed a Report and Recommendation that the Petition be dismissed because it was filed after the expiration of the one-year statute of limitations and it contains unexhausted claims. Baker did not file any objections to the Report and Recommendation but did file a motion on December 7, 2009, seeking to stay the Petition so she could exhaust her claims.

The Court has conducted a de novo review of the Report and Recommendation and the relevant record and concludes that the Report and Recommendation properly applies the law to the record. Therefore, the Court ADOPTS the Report and Recommendation in so far as it recommends dismissal based on the statute of limitations. The Court ORDERS as follows:

(1) The Petition for Writ of Habeas Corpus shall be DISMISSED with prejudice as filed beyond the one-year statute of limitations in 28 U.S.C. § 2244(d);

(2) The motion for a stay captioned as "Motion Requesting a Protective Petition" [Doc. No. 18] is DENIED as moot;

(3) The Court DENIES a Certificate of Appealability. The Clerk shall enter a final judgment accordingly.

IT IS SO ORDERED.

20100127

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