The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) ADOPTING REPORTAND RECOMMENDATION; (2) GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DENYING CERTIFICATE OF APPEALABILITY (ECF Nos. 9, 22)
Presently before the Court is Respondent Warden M.D. Biter's ("Respondent") motion to dismiss Petitioner Lawrence Christopher Smith's ("Petitioner") petition for writ of habeas corpus. (Mot. to Dismiss, ECF No. 9) Also before the Court are Magistrate Judge Peter C. Lewis's report and recommendation ("R&R") recommending the Court grant Respondent's motion, (R&R, ECF No. 22), and Petitioner's objections to the R&R, (Obj., ECF No. 23).*fn1 For the reasons stated below, the Court OVERRULES Petitioner's objections, ADOPTS the R&R, and GRANTS Respondent's motion to dismiss.
Magistrate Judge Lewis's R&R contains a thorough and accurate recitation of the facts and procedural history underlying Petitioner's habeas petition, and is incorporated by reference here. (R&R 1--2, ECF No. 22) Below is a time line of the relevant dates to this petition: - September 10, 2008: California Supreme Court denies Petitioner's petition for review of his state-court conviction. (Notice of Lodgment ("NOL") No. 6, ECF No. 10) - December 9, 2008: Petitioner's conviction becomes final.*fn2
- May 7, 2009: Petitioner files habeas petition in Superior Court of California. (NOL No. 7) - July 8, 2009: Superior Court of California denies Petitioner's habeas petition. (NOL No. 8) - December 23, 2009: Petitioner files second habeas petition in Superior Court of California. (R&R 4, ECF No. 22) - February 9, 2010: Superior Court of California denies Petitioner's second habeas petition. (NOL No. 8) - March 11, 2010: Petitioner files habeas petition in California Court of Appeals. (NOL No. 9) - April 27, 2010: California Court of Appeals denies Petitioner's habeas petition. (NOL No. 10) - May, 16, 2010: Petitioner files habeas petition in California Supreme Court. (NOL No. 11) - February 2, 2011: California Supreme Court denies Petitioner's habeas petition. (NOL No. 12) - April 25, 2011: Petitioner files habeas petition in U.S. District Court for the Southern District of California (instant petition). (Pet., ECF No. 1)
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. 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]." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
1. Summary of the R&R's Conclusions
Magistrate Judge Lewis found dismissal appropriate because Petitioner's habeas petition was untimely, concluding that Petitioner was not entitled to statutory or equitable tolling, and should not be given a later start date. Noting that Petitioner's conviction became final on December 9, 2008, the R&R found that December 10, 2009,*fn3 was "the last day Smith could have filed a petition in federal court unless he is entitled to sufficient tolling of the statute or to a later start date for the limitations period." (R&R 2, ECF No. 22) And yet, Petitioner's habeas petition was not filed until April 25, 2011.
With regard to statutory tolling, the R&R first noted that "148 days of the limitations period elapsed between the date [Petitioner's] conviction became final . . . and the date he signed his first petition." (R&R 4, ECF No. 22) The R&R then concluded that Petitioner was not entitled to tolling under 28 U.S.C. § 2244(d)(2) for the time period between December 23, 2009, and February 9, 2010-at which time his second habeas petition was pending before the Superior Court of California-because that petition was not "properly filed." (Id. at 4--5 (citing In re Clark, 855 P.2d 726, 741 (Cal. 1993) (stating that successive petitions are not pending for statutory tolling purposes))) Instead, those 47 days counted against the limitations period, for a grand total of 195 days. (Id. at 5)
Moreover, Magistrate Judge Lewis declined to toll the limitations period from July 8, 2009, to December 23, 2009, "the period between his successive petitions," reasoning that this nearly six-month delay was "unreasonable" and therefore rendered the petition untimely. (Id. (citing Evans v. Chavis, 546 U.S. 189, 197 (2006) (indicating that only timely appeals toll AEDPA's one-year limitations period and that in California "unreasonable" delays are not timely))) Even tolling this period, however, because the California Supreme Court dismissed Petitioner's habeas petition as untimely, the R&R found that the limitations period ran from April 28, 2010, "the day after the California Court of Appeal denied Smith's habeas petition." (R&R 6, ECF No. 22 (citing Thorson v. Palmer, 479 F.3d 643, 645--46 (9th Cir. 2007)) Adding this period to the 195 days calculated above, the R&R determined that "a total of 558 days passed before Smith filed his first petition in federal court. Accordingly, there is no question that Smith's present petition is untimely." (Id.)
With regard to a later start date, the R&R disagreed with Petitioner's contention that a state-created impediment entitled him to a later start date under 28 U.S.C. § 2244(d)(1)(B). Specifically, Magistrate Judge Lewis concluded that "Smith's purported inability to obtain free copies of trial records did not constitute a state-created impediment to filing a ...