The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER (1) ADOPTING REPORT AND RECOMMENDATION [DOC. 16], (2) GRANTING MOTION TO DISMISS [DOC. 7], (3) DISMISSING THE FIRST AMENDED PETITION [DOC. 4] WITH PREJUDICE, AND (4) DENYING CERTIFICATE OF APPEALABILITY
Petitioner Charles Bernard Davis, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On February 23, 2010, this Court dismissed the Petition without prejudice.
On April 19, 2010, Petitioner filed a First Amended Petition ("FAP"). On June 3, 2010, Respondent G. McDonald filed a motion to dismiss, which Petitioner opposed. On December 14, 2010, the Honorable Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("Report"), recommending that this Court grant the motion. On January 31, 2011, Petitioner filed an objection to the Report.
The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons outlined below, the Court ADOPTS the Report [Doc. 16], GRANTS the motion to dismiss [Doc. 7], and DISMISSES the First Amended Petition [Doc. 4] WITH PREJUDICE.
Petitioner did not object to the following factual summary taken from the Report: A jury convicted Petitioner of three counts of second degree murder with a knife-use enhancement. Petitioner appealed to the California Court of Appeal and argued that the trial court erred in instructing the jury about his right not to testify as a defendant, and that his conviction should be reduced because the prosecution did not meet its burden. The California Court of Appeal affirmed the conviction on August 28, 2008. Petitioner then filed a petition for review in the California Supreme Court, which was denied on October 22, 2008. Petitioner did not file a writ of certiorari with the United States Supreme Court.
On February 2, 2010, Petitioner commenced this proceeding. On February 24, 2010, this Court dismissed the Petition without prejudice for failing to (1) name the proper respondent, (2) allege exhaustion of state-court remedies, and (3) use the proper form.
On March 24, 2010, Petitioner filed the FAP. On June 3, 2010, Respondent filed the motion to dismiss arguing that the FAP was barred by the applicable statute of limitations and because Petitioner failed to exhaust state remedies. Petitioner filed his opposition on September 16, 2010.
On December 14, 2010, Judge Bencivengo issued the Report recommending that this Court grant Respondent's motion to dismiss. The Report found that the FAP should be dismissed as untimely under the applicable statute of limitations (id., 2:11-13), and because Petitioner failed to exhaust his state-court remedies (id., 7:12-13). On January 31, 2011, Petitioner filed his objection to the Report.
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must 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." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
In his objection, Petitioner argues that the FAP is not time barred for the following three reasons: (1) he timely filed a habeas petition on October, 9 2009, well within the statute of limitations; (2) Judge Bencivengo incorrectly calculated the statute of limitations; and (3) this Court previously found his habeas petition was timely. With respect to the Report's finding that Petitioner failed to exhaust state-court remedies, Petitioner argues that the claims in his FAP were raised in state court.
Having read and considered the FAP, the Report, and Petitioner's objections thereto, the Court finds the Report presents a well-reasoned analysis of the issues. The Court, therefore, concludes that the FAP is time barred ...