The opinion of the court was delivered by: Hon. David O. Carter United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
On October 20, 2009, petitioner Michael C. Pearson ("Petitioner"), a California prisoner incarcerated at California State Prison, Centinela and proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254.
On July 6, 2010, Respondent filed a Motion to Dismiss the Petition ("Motion"), asserting that the Petition is barred by the one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1).
On November 22, 2010, Petitioner filed an Opposition to the Motion ("Opposition"). In his Opposition, Petitioner argued: (1) with respect to his final habeas petition before the California Supreme Court, "California's habeas timing rules were not adequate at the time it denied Petitioner's state petition on timeliness grounds"; and (2) that his "showing of 'actual innocence' allows him to pass through any such time bar." (Opp. at 5, 10.)
On January 19, 2011, the Magistrate Judge issued his Report and Recommendation ("R&R"), recommending that Respondent's Motion be granted and that judgment be entered dismissing this action with prejudice. (See R&R at 2,12.)
On February 4, 2011, Petitioner filed Objections to the R&R ("Objections"). In his Objections, Petitioner contends that "the misconstruction of his statutory tolling argument . . . evades the question of whether the state's timing rule is adequate to preclude federal review by denying statutory tolling." (Objs. at 3.) Petitioner further claims that "[b]y denying petitioner's statutory tolling argument based on law governing equitable tolling, the Magistrate necessarily abused its discretion." (Id. at 4-5.)
The Court will address the argument made in Petitioner's Objections and further expand upon the Magistrate Judge's denial of his actual innocence claim. As to the latter, the Magistrate Judge relied on the Ninth Circuit's decision in Lee v. Lampert, 610 F.3d 1125, 1136 (9th Cir. 2010), which was recently vacated and the case ordered to be reheard en banc. Lee v. Lampert, 2011 WL 499347, at *1 (9th Cir. Feb. 8, 2011).
In any event, now, having conducted a de novo review, including studying the Motion, the Opposition, the R&R, and the Objections, the Court is persuaded that the Petition is untimely. This Court, therefore, adopts the findings, conclusions, and recommendations of the Magistrate Judge.
A. California's Timing Rules
Petitioner first complains that the Magistrate Judge's "misconstruction of his statutory tolling argument . . . evades the question of whether the state's timing rule is ...