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Harvey Eugene Larson v. Carrasco

February 25, 2011

HARVEY EUGENE LARSON,
PETITIONER,
v.
CARRASCO, WARDEN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, GRANTING RESPONDENTS' MOTION TO DISMISS, DISMISSING PETITION AS TIME BARRED, AND DENYING MOTION FOR LEAVE TO AMEND

Petitioner Harvey Eugene Larson, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254. The case was referred to United States Magistrate Judge Peter C. Lewis for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.3. Petitioner subsequently twice amended the petition. The Second Amended Petition for Writ of Habeas Corpus ("Petition") is the operative pleading. Respondents filed a motion to dismiss the Petition as time-barred under 28 U.S.C. § 2244(d).

Petitioner opposed Respondents' motion to dismiss. In addition, he filed a pleading styled as "Additional Grounds Supplemental Pleading," which was presented on the Petition for Writ of Habeas Corpus form. The Magistrate Judge construed the pleading as a motion for leave to amend the Petition ("Motion for Leave to Amend"). (See Order filed Feb. 17, 2011.) The Magistrate Judge issued a Report and Recommendation ("Report and Recommendation") recommending the Petition be dismissed.*fn1

Pursuant to Federal Rule of Civil Procedure 72(b)(2) Petitioner filed objections ("Objections"), to which Respondents did not respond. For the reasons stated in the order issued by the undersigned on August 23, 2010, the Report and Recommendation was adopted in part and remanded in part to the Magistrate Judge.

After remand, the Magistrate Judge issued the Second Report and Recommendation on Motion to Dismiss Petition for Writ of Habeas Corpus ("Second Report and Recommendation"). Petitioner filed a Motion to Expand the Record of Habeas Corpus Case to Include Supplemental Pleading for Objections to Magistrate Judge Report and Recommendations ("Motion"), a Request to File Supplemental Pleading ("Request") and Objections and Memorandum of Points and Authorities to Second Report and Recommendation on Motion to Dismiss Petition for Writ of habeas Corpus ("Second Objections"). Respondents did not file a response.

The court considered all materials submitted with Petitioner's Motion, Request and Second Objections. Upon consideration of the foregoing, for the reasons stated in the August 23, 2010 order and the reasons which follow, the Second Report and Recommendation is ADOPTED IN PART. To the extent Petitioner requested leave to file any further pleadings or other materials, the request is DENIED. Respondents' motion to dismiss is GRANTED and the Petition is DISMISSED as time-barred. Because Petitioner's Motion for Leave to Amend does not address the statute of limitations issue and because amendment would be futile, the motion is DENIED.

In the initial and the Second Report and Recommendation the Magistrate Judge found that the Petition was time-barred and recommended dismissal. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "sets a one-year statute of limitations for filing a federal habeas petition seeking relief from a state court judgment." Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009); see also 28 U.S.C. § 2244(d)(1). Generally, the statute runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The judgment in Petitioner's case became final on July 30, 2002 and, in the absence of any grounds to delay the start of the limitations period or toll it once it begins to run, the statute of limitations expired on July 30, 2003. (See Report and Recommendation at 4.) Petitioner did not file his federal petition until March 11,*fn2

In the August 23, 2010 order this court found that Petitioner's first state habeas corpus petition was not properly filed until November 23, 2003, after the expiration of the AEDPA statute of limitations. (Aug. 23, 2010 Order at 2-4, citing Ferguson v. Palamteer, 321 F.3d 820, 823 (9th Cir. 2003).) The court also rejected Petitioner's argument that an intervening change in the law equitably tolled the statute on the Petition. (Id. at 4.) Last, the court rejected Petitioner's argument that the "actual innocence gateway" can be used to circumvent the AEDPA statute of limitations. (Id. at 5, citing Lee v. Lampert, 610 F.3d 1125 (9th Cir. 2010).) These issues are not revisited, but are incorporated by reference herein.

Because Petitioner had raised other issues in his opposition to Respondents' motion to dismiss which were not addressed in the Report and Recommendation, they were remanded for consideration by the Magistrate Judge in the first instance. (Id. at 4-5.) Accordingly, three issues were remanded: (1) whether equitable tolling could render the Petition timely due to the limitation on Petitioner's access to the law library and difficulties with prison legal mail and access to his legal materials; (2) whether a State-created impediment rendered the Petition untimely; and (3) whether the statute of limitations should be tolled because Petitioner was not able to discover the factual predicate of his claims before the statute ran out. (Id.) These issues were considered in the Second Report and Recommendation and are the subject of this order. The Magistrate Judge found that none of Petitioner's arguments in this regard were persuasive and recommended dismissing the Petition as time-barred. Petitioner objected to the Second Report and Recommendation in all respects.

In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1).

As pertinent in this case, the one-year AEDPA statute of limitations runs from the latest

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; . . . or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...


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