The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION MOTION TO DISMISS [DOC. 10], AND (3) DISMISSING PETITION
Steven Anthony Sexton ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"). On September 21, 2009, Respondent Derral G. Adams filed a Motion to Dismiss. On April 9, 2010, United States Magistrate Judge Louisa S. Porter issued a Report and Recommendation ("Report"), recommending that this Court grant the motion. On June 15, 2010, Petitioner filed an Objection to the Report, and on July 14, 2010, Petitioner filed a motion requesting a copy of his Objection.
The Court decides the matters on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). As an initial matter, the Court will GRANT Petitioner's request for a copy of his Objection. (Doc. 17.) Additionally, for the reasons outlined below, the Court ADOPTS the Report (Doc. 13), GRANTS the motion to dismiss (Doc. 10), DISMISSES the Petition WITH PREJUDICE, and DENIES a certificate of appealability.
Petitioner did not object to the following factual summary taken from the Report. On May 23, 2002, a San Diego Superior Court jury found Petitioner guilty of two counts of robbery and use of a handgun to commit a robbery. (Report at 2.) Petitioner was later sentenced to seventy years to life. (Id.) Petitioner appealed his convictions. (Id.) On February 4, 2004, the California Supreme Court denied the appeal. (Id.)
On August 13, 2004, Petitioner filed a petition for writ of habeas corpus in the San Diego Superior Court. (Report at 2.) The court denied the petition on September 20, 2004. (Id.) Approximately one year later, on October 3, 2005, Petitioner filed a second habeas petition with the same court. (Id.) The court found Petitioner substantially delayed in filing the petition and denied it on November 28, 2005.*fn1 (Id.)
On February 16, 2007, Petitioner filed a federal habeas petition. After filing several amended petitions, on December 12, 2007, Petitioner filed a motion to withdraw the petition, which was granted. (Report at 3.) Then on April 23, 2008, Petitioner filed a habeas petition with the California Supreme Court, which was denied on September 17, 2008. (Id.)
On May 14, 2009, Petitioner commenced the instant Petition. (Report at 3.) On September 21, 2009, Respondent filed a motion to dismiss the Petition on the ground that it is time barred. (Id. at 4.) Petitioner did not file an opposition. (Id.)
On April 9, 2010, Judge Porter issued the Report recommending that the Court grant the motion. The Report found that the Petition is time barred by the one-year statute of limitation provided by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254 ("AEDPA"), and does not qualify for sufficient statutory-tolling to render it timely. (Id. at 7-8.) On June 15, 2010, Petitioner filed an Objection to the Report. (Doc. 15.)
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
In the motion to dismiss, Respondent argued that the Petition should be dismissed because it is untimely. Respondent acknowledged that Petitioner qualifies for some statutory tolling, but not enough to render the Petition timely. The Report agreed with Respondent.
Petitioner filed an Objection, but failed to identify any deficiencies with the Report's analysis. Having read and considered the Petition, Report, and Objection, the Court finds the Report presents a well-reasoned analysis of the issues. The ...