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Jimenez v. Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 13, 2010

DANIEL LICEA JIMENEZ, PETITIONER,
v.
LARRY SMALL, WARDEN, ET AL., RESPONDENTS.

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

ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; DISMISSING DENYING A CERTIFICATE OF PETITION WITH PREJUDICE; AND APPEALABILITY

In a Report and Recommendation filed on November 18, 2009, Magistrate Judge Stormes recommends that Respondent's motion to dismiss the Petition for Writ of Habeas Corpus ("Petition") be granted in part and denied in part and that the Petition be dismissed with prejudice. No objections to the Report and Recommendation have been filed.

The Court concludes that the Report and Recommendation correctly applies the relevant law to the record. For the reasons set forth in the Report and Recommendation, Petitioner's Petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Therefore, the Court orders:

1. The Report and Recommendation filed on November 18, 2009 is ADOPTED as the decision of this Court.

2. Respondent's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

2. The Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.

3. A Certificate of Appealability is DENIED.

4. The Clerk shall enter judgment dismissing the Petition with prejudice and denying a Certificate of Appealability.

IT IS SO ORDERED.

20100413

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