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Martin v. Neotti
October 14, 2010
ROBERT MARTIN, PETITIONER,
GEORGE A. NEOTTI, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Magistrate Judge's Report and Recommendation (the "R&R"), Petitioner's Objections filed on August 6, 2010, and Petitioner's Objections filed on August 10, 2010.
In his Objections, Petitioner argues that the AEDPA statute of limitations does not bar his Petition because he raising an actual innocence claim. (See August 6, 2010 Objections at 2-4; August 10, 2010 Objections at 2-3).*fn1 However, the Ninth Circuit has recently held that there is no actual innocence exception to the AEDPA limitations period. See Lee v. Lampert, 610 F.3d 1125, 1133 (9th Cir. 2010) ("[W]e conclude that there is no Schlup actual innocence exception to override AEDPA's statute of limitations."). To the extent Petitioner argues that his actual innocence claim provides an exception to the AEDPA's bar against successive petitions, this argument also fails. As set forth in the R&R, "even if Petitioner could satisfy one of the statutory exceptions, he would still need to obtain permission from the Ninth Circuit Court of Appeals before filing his Petition in this Court." (R&R at 10 n. 6); see also 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) ("Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court."). Accordingly, Petitioner's actual innocence claim does not prevent dismissal of his Petition. The Court rejects this Objection.
The Court has made a de novo determination of the portions of the Report and Recommendation to which the remaining Objections were directed. The Court disagrees with the Objections and adopts the findings and conclusions of the Magistrate Judge.
IT IS THEREFORE ORDERED THAT:
1. The Petition is DENIED and Judgment shall be entered dismissing this action with prejudice.
2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Petitioner at ...
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