The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Desmond Brown, a prisoner in state custody, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in California state court. The petition argues someone else committed the crimes Brown was convicted of, and that new evidence establishes his innocence.
This matter was referred to Magistrate Judge Nita Stormes for report and recommendation. On July 28, 2011, Judge Stormes issued her report and recommendation (the "R&R"), recommending that Respondent's motion to dismiss the petition be granted, and that the petition be dismissed with prejudice. Objections were originally due August 19, 2011, but Brown sought an extension of time in which to object, citing limited access to the prison library. The Court granted his request, directing him to file his objections no later than September 17, 2011.
On August 15, the Court accepted by discrepancy order a letter from Brown asking for help finding certain legal opinions not readily available to him. The Court directed that copies of those opinions be sent to him.
Brown did not file any objections, but he did file a second motion for extension of time.
The court denied this on September 15, two days before objections were due. That order explained that additional pieces of evidence Brown was waiting for was either not relevant or could not be considered when ruling on the petition. Since that time, Brown has filed no objections.
I. Legal Standards for R&R
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." Id. When no objections are filed, the Court need not review the report and recommendation de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). See also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
Although the Court is not required to conduct a de novo review of the unobjected-to R&R, the Court believes some discussion on the R&R is in order, since Brown expressed an interest in filing objections but hasn't done so. The analysis below supplements the reasoning in the R&R.
A. Timeliness of Petition
The R&R made findings concerning the dates of certain events, such as the date Brown's conviction became final, and the dates he filed his petitions in state court. The R&R concluded that, even with statutory tolling, Brown filed his petition in this Court over a year after AEDPA's 1-year limitations period had expired. The R&R's calculations of the 1-year limitations period under AEDPA appear to be correct.
The R&R correctly concluded Brown was not entitled to "gap tolling" for the 102 days between rounds of state habeas review. See Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (discussing gap tolling, and concluding that a 91-day gap was unreasonable). And even if Brown were entitled to gap tolling, his petition would still be late by five months.
The R&R also correctly concluded Brown was not entitled to equitable tolling because even if extraordinary circumstances existed, he was not diligent. The Court further notes that his proffered "extraordinary circumstances" are either ordinary events of prison life, or matters within Brown's control, such as his decision to rewrite his petition to add a new claim, based on advice from a jailhouse lawyer. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (ordinary prison limitations on access to law library and copier did not amount to extraordinary circumstances); Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir.2010) (holding that certain delays consistent with "the vicissitudes of prison life" were not extraordinary circumstances). Because "[t]he threshold for equitable ...