The opinion of the court was delivered by: Hon. Dale S. Fischer United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
I.INTRODUCTION AND SUMMARY
On March 18, 2010, petitioner Jose C. Gomez ("Petitioner"), a California prisoner incarcerated at Correctional Training Facility 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 in the Southern District of California.
On May 19, 2010, the case was transferred to the Central District of California. See Gomez v. Grounds, Civil No. 10-0916 BEN (PCL), at 3 (S.D. Cal. May 19, 2010) (order transferring case).
On September 24, 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 29, 2010, Petitioner filed an Opposition to the Motion ("Opposition").
On January 6, 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 14, 2011, Petitioner filed Objections to the R&R ("Objections"). The Court will address the arguments made in Petitioner's Objections and further expand upon the Magistrate Judge's denial of his actual innocence claim. (See Opp. at 6-7; Objs. at 3-7.) 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).
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.
Petitioner first makes two arguments to explain his delay in filing a timely federal petition. First, he contends he is entitled to equitable tolling because he "was relying on inmates assisting him due to his language barrier and his not understanding the law." (Objs. at 2.) Second, he maintains that he delayed in filing his second habeas petition in the California Court of Appeals because he "had no idea what was going on" and attempted to file habeas petitions earlier, which were not accepted by the appellate court, and he "was transferred to another prison on 10/01/08. . . . [and, due to a ...