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Ralph Leon Burton v. Matthew Cate

September 28, 2011

RALPH LEON BURTON,
PETITIONER,
v.
MATTHEW CATE, WARDEN, AND EDMUND G. BROWN JR., THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation ("R&R") (ECF No. 21) of Magistrate Judge William V. Gallo, filed on June 17, 2011, recommending that the Court grant Respondent's Motion to Dismiss and deny Petitioner Ralph Leon Burton's Motion to Strike and Motion for Evidentiary Hearing.

I. Background

On October 16, 2006, Petitioner pleded guilty to one count of rape in violation of Cal. Penal Code § 261(a)(2) and oral copulation by force in violation of Cal. Penal Code § 288(a)(c)(2) committed on February 25, 2006. On November 14, 2006, Petitioner was sentenced to eight years of imprisonment. Petitioner did not appeal his convictions or sentence.

On September 30, 2007, Petitioner's Petition for Writ of Habeas Corpus was filed in the Superior Court of California for the County of San Diego. On October 8, 2008, the Superior Court held a hearing and denied the Petition.

On May 15, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal. On August 5, 2009, the Court of Appeal denied the Petition. On August 8, 2009, Petitioner filed a second Petition for Writ of Habeas Corpus in the California Court of Appeal. On October 20, 2009, the Petition was denied. On October 27, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court. On June 9, 2010, the California Supreme Court denied the Petition.

On August 27, 2010, Petitioner initiated this action by filing his Petition for Writ of Habeas Corpus in this Court. (ECF No. 1).

On November 16, 2010, Respondent filed a Motion to Dismiss. (ECF No. 6). On January 11, 2011, Petitioner filed a Motion to Strike. (ECF No. 9). On January 19, 2011, Respondent filed an Opposition to the Motion to Strike. (ECF No. 13). On February 15, 2011, Petitioner filed an Opposition to the Motion to Dismiss. (ECF No. 14). On March 8, 2011, Respondent filed a Reply. (ECF No. 17). On April 26, 2011, Petitioner filed a Motion for Evidentiary Hearing. (ECF No. 20).

On June 17, 2011, the Magistrate Judge issued a Report and Recommendation recommending that the Court grant Respondent's Motion to Dismiss and deny Petitioner's Motion to Strike and Motion for Evidentiary Hearing. (ECF No. 21). The Magistrate Judge concluded that the Petition is barred by the statute of limitations and Petitioner is not entitled to equitable tolling.

On August 24, 2011, Petitioner filed Objections to the Report and Recommendation. (ECF No. 24).

II. Standard of Review

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 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); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

III. Discussion

A. Statutory ...


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