The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner, a state prisoner appearing through counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. After the petition had been fully briefed, the Honorable Peter C. Lewis, United States Magistrate Judge, issued a report and recommendation, recommending this Court dismiss the petition as untimely filed. Petitioner filed objections to the report. After a careful consideration of the pleadings submitted by the parties, along with the entire record of this matter, this Court OVERRULES petitioner's objections, ADOPTS the magistrate judge's report in toto, DISMISSES the instant petition as untimely, and DENIES a certificate of appealability.
On March 12, 2004, a jury found petitioner guilty of assault by a prisoner by means of force likely to produce great bodily injury and assault on a peace officer by means likely to produce great bodily injury. The jury also found true allegations that petitioner inflicted great bodily injury. The trial court found true allegations concerning petitioner's three prior convictions, implicating the application of California's Three Strikes law. Petitioner was sentenced, on May 12, 2004, to two concurrent terms of twenty-eight years to life on the assault counts plus a three year term for the great bodily injury enhancement. On January 28, 2005, petitioner appealed his conviction to the California Court of Appeal. On June 13, 2005, the California Court of Appeal affirmed the conviction in all respects except for ordering a stay on the concurrent sentence for the assault on a peace officer count.
Petitioner subsequently filed a petition for review before the California Supreme Court, which was denied without comment on August 31, 2005. Petitioner then, on October 16, 2006, filed a petition for writ of habeas corpus before the Imperial County Superior Court, which was denied on its merits on December 15, 2006. On February 20, 2007, petitioner filed a habeas corpus petition before the California Court of Appeal, which was denied as untimely and lacking in merit on July 27, 2007. Petitioner also filed, on August 27, 2007, a petition for writ of habeas corpus before the California Supreme Court, which was denied without comment on March 12, 2008.
The instant petition was filed on April 16, 2008. Respondent filed an answer to the petition on September 5, 2008. After obtaining various extensions of the deadline for filing his traverse, petitioner's traverse was filed on March 7, 2009. The magistrate judge's report and recommendation was filed on September 17, 2009. On September 29, 2009, petitioner's filed his objections to the magistrate judge's report.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in Title 28, United States Code, Section 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).
b. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a one-year period of limitation applies to the filing of a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. The limitation period begins on the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.*fn2 28 U.S.C. § 2244(d)(1)(A).
AEDPA's statute of limitation is subject to statutory tolling which tolls the statute during the time a properly filed state habeas corpus ...