The opinion of the court was delivered by: Honorable Gary A. Feess United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On October 25, 2012, the United States Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that petitioner's Petition for Writ of Habeas Corpus be denied and the action dismissed with prejudice. On November 26, 2012, petitioner filed "Objections to the Magistrate[']s Findings and Recommendations" ("Objections"), and respondent filed a Response to petitioner's Objections on December 6, 2012 ("Response").
First, petitioner argues in his Objections that he is entitled to tolling from December 29, 2009, to February 12, 2010, i.e., during the pendency of his 2009 Petition (in Case No. CV 09-9502-GAF (PLA)) because the Magistrate Judge denied his request for a stay and request for 60 days to amend that petition to add unspecified claims. (Objections at 8-9; see Case No. CV 09-9502-GAF (PLA), Docket No. 8). However, as the Magistrate Judge advised petitioner in the January 27, 2010, Order denying those requests, the pendency of a federal habeas petition does not serve to toll the limitations period. See Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (statutory tolling does not apply during the pendency of a federal habeas petition). This argument by petitioner therefore lacks merit.*fn1
Next, petitioner contends that the Magistrate Judge improperly determined that petitioner was not diligent during the 283 days between the time his 2009 Petition was dismissed and the time he constructively filed his habeas petition in the Los Angeles County Superior Court (see R&R at 12). (Objections at 4, 6-7). In support of this contention, petitioner first asserts that "a petitioner has the right to file his writ at any time within the limitation period." (Objections at 6). To the extent that petitioner thereby asserts that he had a "right" to commence a round of state collateral review at any time within the one-year period, petitioner is correct that a prisoner can do so at any time during the one-year period and theoretically still file a timely federal petition upon the conclusion of state collateral review. However, the prisoner who waits until the last days of the one-year period to pursue his state remedies takes the risk that, upon concluding exhaustion of his state remedies, ordinary circumstances causing delays in his ability to file in federal court may result in his federal petition being time-barred. Such was the case here, and petitioner may not disavow the consequences of his decision to wait until three days remained in the limitations period to file his habeas petition in the state superior court. See Omar-Muhammad v. Williams, 17 Fed.Appx. 898, 900, 2001 WL 967793 (10th Cir. Aug. 24, 2001) (citable for its persuasive value pursuant to United States Court of Appeals for the Tenth Circuit Rule 32.1(A), (C) (citing Fed. R. App. P. 32.1)); Blount v. Biter, 2012 WL 3150943, at **7-8 (C.D. Cal. Aug. 2, 2012). Petitioner also objects to the Magistrate Judge's citations to Omar-Muhammad and Blount (see R&R at 12-13) on the basis that "unpublished opinions cannot constitute precedential authority," and on the basis that "reliance on these cases is misplaced" because petitioner "diligently pursued his action" for the ten and one-half months during which he was pursuing state collateral review. (Objections at 7). However, the Report and Recommendation assumed for the purpose of respondent's Motion to Dismiss that the one-year limitations period was statutorily tolled during the pendency of petitioner's state petitions and in between his filings thereof (see R&R at 8), and thus any "diligence" by petitioner during that period is not relevant to whether he was diligent during the 283 days before he filed his state habeas petition in the superior court. Moreover, the Magistrate Judge cited Omar-Muhammad and Blount not for their precedential authority, but for their persuasive value on the issue of diligence. (See R&R at 12-13).
Third, petitioner asserts that the Magistrate Judge incorrectly determined that petitioner did not demonstrate diligence in the period leading up to and following the confiscation of his box of legal materials. In support of this assertion, petitioner first argues that he did not contribute to his legal materials being confiscated because Section 3161 of Title 15 of the California Code of Regulations permits inmates to "possess up to one cubic foot of legal materials/documents related to their active cases, in excess of the six cubic feet of allowable property in their assigned quarters/living area" (Cal. Code Regs., tit. 15, § 3161). (See Objections at 4). Petitioner contends that "[t]here is zero factual evidence to support the finding that petitioner[']s possession of 1 cubic foot of legal materials in excess of 6 cubic feet of other personal property was in any way a rule violation," and thus "'prior notice' that staff intended to violate their own regulations required no action by petitioner." (Id.) Petitioner's argument is unpersuasive. To the extent that, at the time his box of legal materials was confiscated, petitioner was aware of Section 3161's allowance for one cubic foot of legal property in addition to the six cubic feet of personal property allowed an inmate, petitioner could have brought the regulation to the confiscating officer's attention. However, petitioner does not assert in the Petition, the Opposition to the Motion to Dismiss, or the Objections that he protested the confiscation of his box of legal materials on the basis of Section 3161. On the other hand, to the extent that petitioner was not aware of Section 3161 at the time of the confiscation, he has not alleged that he requested to keep his box of legal materials within the allowed six cubic feet of personal property, and have one cubic foot of other property confiscated in its place. As such, petitioner has not demonstrated that, simply because Section 3161 states that an inmate is allowed to keep one cubic foot of legal property in his cell in excess of the allowable six cubic feet of personal property, petitioner's diligence in pursuing his rights "required no action" on his part to seek to prevent the confiscation of his legal materials.
Petitioner also objects to the Magistrate Judge's conclusion that petitioner was not diligent during the five months he was waiting for his box to be returned to him, as demonstrated by his failure to file a basic form petition during that time. (See R&R at 13). Petitioner asserts that he wrote none of the briefs in his case himself and "could not put together a bare-bones writ even with the confiscated records." (Objections at 8). As respondent points out, however, petitioner "had the opportunity to keep the copy of his federal habeas petition free from confiscation, but failed to do so." (Response at 5). Indeed, petitioner has presented no evidence that he attempted to take the copy of the federal habeas petition he had prepared out of the box of legal paperwork before the box was confiscated, but was prevented from doing so. As such, this objection also fails to establish that petitioner was in fact diligently pursuing his rights during the period leading up to and following the confiscation.
Accordingly, after full consideration of the arguments and allegations in petitioner's Objections, the Court concludes as follows:
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Magistrate Judge's Report and Recommendation, petitioner's Objections thereto, and respondent's Response to petitioner's Objections. The Court agrees with the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Report and Recommendation is adopted.
2. Respondent's Motion to Dismiss ...