The opinion of the court was delivered by: Hon. S. James Otero United States District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief amplification here.
Petitioner contends that he is entitled to statutory tolling because he filed an "Ex Parte Motion for Order for Transcripts" ("Motion") in Los Angeles County Superior Court on January 14, 2011. (Obj. at 1-2, 4.) In the Motion, Petitioner asked the Superior Court to: (1) provide him with records of his trial proceedings, including the Clerk's Transcript and Reporter's Transcript; or (2) order his "appointed counsel" to provide such documents. (Id. at 4-7.) Petitioner argued that he "needed" the documents to prepare a "habeas defense." (Id. at 5.)
Such a Motion, however, does not toll AEDPA's limitation period because it does not constitute "a properly filed application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). See, e.g., Ramirez v. Yates, 571 F.3d 993, 999-1000 (9th Cir. 2009) (petitioner's "discovery motions ... did not statutorily toll the limitations period" because they "did not challenge his conviction, but simply sought material he claimed might be of help in later state proceedings") (internal quotation marks and citation omitted); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (No statutory tolling where petitioner's application "did not challenge his conviction. Rather, it sought material he claimed might be of help in developing such a challenge ...."); McCaffery v. Henry, 2008 WL 859455, at *4 (N.D. Cal. Mar. 28, 2008) ("Petitioner's filings in state superior court, including her motions for copies of the trial record ... and her petition for a writ of mandate to compel the public defender to provide her a copy of the trial record ..., did not toll the limitations period because they did not constitute a challenge to Petitioner's conviction.").
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability.
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