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Francisco Gil v. James A. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 21, 2010

FRANCISCO GIL,
PETITIONER,
v.
JAMES A. YATES,
RESPONDENT.

ORDER ADOPTING SUPPLEMENTAL FINDINGS AND RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE AS UNTIMELY, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 30]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On November 1, 2010, the Magistrate Judge issued a Supplemental Findings and Recommendation that the Motion to Dismiss be GRANTED. This Findings and Recommendation was served on all parties with notice that any objections were to be filed within thirty days of the date of service of the order. Over thirty days have passed, and no objections have been filed.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. /// ///

Accordingly, IT IS HEREBY ORDERED that:

1. The Supplemental Findings and Recommendation issued November 1,2010, is ADOPTED IN FULL;

2. Respondent's Motion to Dismiss is GRANTED; 3. The Petition for Writ of Habeas Corpus is DISMISSED with prejudice as untimely; and

4. The Court DECLINES to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, jurists of reason would not find debatable whether the petition was properly dismissed with prejudice as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner has not made the required substantial showing of the denial of a constitutional right.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE

20101221

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