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Nguyen v. Hartley

August 9, 2010

SON NGUYEN, PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the review of the Report and Recommendation (Doc. # 11) issued by United States Magistrate Judge Cathy Ann Bencivengo, recommending that Respondent's Motion to Dismiss (Doc. # 8) be granted and that judgment be entered dismissing the Petition for Writ of Habeas Corpus (Doc. # 1) for failure to file within the applicable statute of limitations.

I. Background

On October 28, 1992, Petitioner Son Nguyen was sentenced to life with the possibility of parole for two counts of robbery kidnap, one count of auto theft, and the use of a firearm. (Pet. at 2, Doc. # 1).

On August 7, 2006, the California Board of Parole Hearings ("Board") found Petitioner unsuitable for early release on parole. (Lodgment # 1 at 48).

On April 10, 2007, Petitioner filed a petition for writ of habeas corpus in the San Diego Superior Court, challenging the Board's August 7, 2006 denial of parole. (Lodgment # 2). On October 9, 2007, the Superior Court denied the petition. (Lodgment # 3). On March 18, 2008, Petitioner signed a petition for writ of habeas corpus which was filed in the California Court of Appeal, challenging the Board's August 7, 2006 denial of parole. (Lodgment # 4). On September 19, 2008, the Court of Appeal denied the petition. (Lodgment # 5). On January 24, 2009, Petitioner signed a petition for writ of habeas corpus which was filed in the California Supreme Court. (Lodgment # 6). On June 10, 2009, the California Supreme Court summarily denied the petition. (Lodgment # 7).

On July 6, 2009, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court, challenging the Board's August 7, 2006 denial of parole.*fn1 (Doc. # 1).

On December 4, 2009, Respondent filed a Motion to Dismiss the Petition and a Notice of Lodgment. (Doc. # 8). Respondent contends that the Petition is barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d).

On January 4, 2010, Petitioner filed a Motion for Extension of Time to File Response to the Motion to Dismiss. (Doc. # 9). Petitioner requested an extension "up until February 6, 2010 in which to prepare and file his... Opposition to Respondent's Motion to Dismiss the writ." (Doc. # 9 at 2).

On January 6, 2010, the Magistrate Judge granted Petitioner's Motion for Extension of Time and permitted Petitioner to file a response to the Motion to Dismiss on or before February 6, 2010. (Doc. # 10).

The docket reflects that Petitioner has not filed a response to the Motion to Dismiss. On June 22, 2010, the Magistrate Judge issued the Report and Recommendation. (Doc. # 11). The Magistrate Judge concluded that the Petition was filed after the expiration of the statute of limitations pursuant to 28 U.S.C. § 2244(d). The Report and Recommendation concludes:

For the reasons discussed above, the Court RECOMMENDS that the motion to dismiss be GRANTED and this case be DISMISSED with prejudice.

This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).

IT IS ORDERED that no later than July 22, 2010, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be ...


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