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Thurston v. Yates

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 17, 2010

ANDERSON P. THURSTON, PETITIONER,
v.
JAMES YATES, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

On January 29, 2010, the undersigned recommended respondent's motion to dismiss the instant habeas petition as barred by the AEDPA statute of limitations, filed on March 30, 2009, be granted. Nevertheless, respondent has filed a motion for reconsideration directed to the undersigned, pursuant to L.R. 78-230(k).*fn1 In the pending Findings and Recommendations (docket # 27), pp. 4, 6, it was noted that respondent had failed to raise an argument for statutory untimeliness under Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005), based on petitioner's initial state habeas petition having been denied by the California Supreme Court with a citation to In re: Clark, 5 Cal.4th 750 (1993), but that this court would not raise it for respondent. Respondent now seeks to have the court permit belated incorporation of a Pace untimeliness argument "in order to preserve the issue," but without offering any explanation as to why the argument was not made appropriately within the motion, how the failure to include it should be construed as anything other than a waiver of any such argument for purposes of the motion, and how it would be anything but unduly prejudicial to petitioner pro se to allow retroactive incorporation of an argument which would necessarily obviate any ability by petitioner to respond.

Accordingly, IT IS ORDERED that respondent's motion for reconsideration, filed on February 5, 2010 (docket # 28), is denied.


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