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Carl Mcdade v. M. Lea

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 24, 2011

CARL MCDADE,
PETITIONER,
v.
M. LEA, CHIEF DEPUTY ADMIN.,
RESPONDENT.

The opinion of the court was delivered by: United States District Judge James V. Selna

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 and files herein, and the Magistrate Judge's Report and Recommendation ("R&R"). The time for filing Objections to the Report and Recommendation has passed and no Objections have been received. Accordingly, the Court accepts and adopts the findings, conclusions and recommendations of the Magistrate Judge.

The Court notes that the R&R relies on a date to determine when Petitioner's conviction became final (R&R at 8) that is earlier than the date referenced in the December 3, 2010 Order To Show Cause (OSC at 3) for the same purpose. As explained in the R&R, Petitioner erroneously indicated in the Petition that the California Supreme Court denied his petition for review on April 30, 2003, when in fact his petition for review was denied on October 10, 2001. (See R&R at 3 & n.4). Regardless, this discrepancy in dates did not impair Petitioner's ability to contest the dismissal of the Petition because his response to the Order To Show Cause did not rely on any specific date calculations and instead focused on equitable tolling. (See Answer To Order To Show Cause at 3-7). Moreover, the Petition is untimely by several years under either date calculation.

IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner at his current address of record.

LET JUDGMENT BE ENTERED ACCORDINGLY.

20110124

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