The opinion of the court was delivered by: Honorable Dale S. Fischer United States District Judge
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), and petitioner's objections to the Report and Recommendation ("Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.
In the Objections, petitioner claims that he is entitled to equitable tolling for the 140-day period of January 22, 2010 to June 10, 2010, i.e., the period between the denial of the Fourth State Petition and the filing of the Fifth State Petition, because such period "just happens to coincide with the period of time when Petitioner had the least amount of access to the law library at [his] prison." (Objections at 3). Petitioner attests that the law library at his facility was "closed most of the time [in 2009 and 2010]." (Objections at 4). Even accepting petitioner's factual allegations (as opposed to his suggested inferences and legal conclusions) as true, petitioner is not entitled to equitable tolling for the period in issue because such facts, even if accepted as true, fail to demonstrate that the lack of access to the law library proximately caused him to fail to file a timely federal Petition. As noted in the Report and Recommendation, during 2009 and 2010 -- a period during which petitioner assertedly also had only limited access to the law library, he filed the Third State Petition, the Fourth State Petition, the Fifth State Petition and the Fifth Petition Supplement. As such petitions collectively raised the same claims petitioner makes in the pending federal Petition and were filed well before the federal statute of limitations expired, petitioner's asserted lack of access to the law library between January 22, 2010 and June 10, 2010, did not proximately cause him to file an untimely federal Petition. Accordingly, even assuming petitioner had no access to the law library between January 22, 2010 and June 10, 2010, he would not be entitled to equitable tolling for such period of time.
IT IS HEREBY ORDERED that the Motion to Dismiss the Petition is granted and that Judgment be entered dismissing the Petition with prejudice as time-barred.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on petitioner and counsel for respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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