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; GRANTING RESPONDENT'S MOTION TO DISMISS; AND DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AS UNTIMELY
Petitioner, a state prisoner appearing pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence before the state court. Respondent, in lieu of an answer, filed a motion to dismiss the petition as untimely. The Honorable Cathy Ann Bencivengo, United States Magistrate Judge, issued a report and recommendation, recommending that respondent's motion to dismiss be granted and the petition be dismissed with prejudice. Petitioner filed objections to the magistrate judge's report and recommendation. After a careful consideration of the pleadings and relevant exhibits submitted by the parties along with the magistrate judge's report, and for the reasons set forth below, this Court OVERRULES petitioner's objections, ADOPTS the magistrate judge's report, GRANTS respondent's motion to dismiss and DISMISSES the instant petition with prejudice as untimely.
On October 23, 2003, a jury found petitioner guilty of first degree murder and conspiracy to commit murder. The jury also found true special circumstance allegations that the murder was committed for financial gain and while lying in wait. Petitioner was sentenced, on April 2, 2004, to life in prison without the possibility of parole for the murder conviction and a concurrent term of twenty-five years to life for the conspiracy conviction. Petitioner appealed his conviction to the California Court of Appeal and, on June 23, 2006, the California Court of Appeal affirmed the conviction. Petitioner subsequently filed a petition for review before the California Supreme Court, which was denied on September 13, 2006.
Petitioner filed a petition for writ of habeas corpus before the California Superior Court on August 14, 2008, which was denied on its merits on September 11, 2008. On November 3, 2008, petitioner filed a habeas corpus petition before the California Court of Appeal, which was denied on November 25, 2008. Petitioner also filed, on October 16, 2009, a petition for writ of habeas corpus before the California Supreme Court, which was denied on June 10, 2009. Petitioner did not seek a writ of certiorari before the United States Supreme Court.
The instant petition was filed on July 2, 2009. Respondent filed a motion to dismiss the petition on October 28, 2009. Petitioner filed a response to the motion on November 25, 2009. The magistrate judge issued a report and recommendation on April 2, 2010. Petitioner filed his objections to the magistrate judge's report on June 1, 2010. Petitioner also filed supplemental lodgments in support of his objections on June 7, 2010.
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 ...