May 14, 2013
HUGO LUA, Petitioner,
G. LEWIS, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
DAVID O. CARTER, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's "Application for Certificate of Appealability, " which the Court liberally construes as Petitioner's Objections, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in the Petition, and lack merit for the reasons set forth in the Report and Recommendation.
There are two issues, however, that warrant brief amplification here. First, in his Objections, Petitioner provides the Court - for the first time - with information regarding his habeas corpus petition filed in the California Supreme Court. (Obj. at 49); Pet. for Review, California Supreme Court, Case No. S192832, filed May 4, 2011, denied June 15, 2011. Although it need not, the Court exercises its discretion to consider such evidence, and, in so doing, finds it patently unpersuasive. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000) ("[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation"). In particular, Petitioner's petition in the California Supreme Court was filed on May 4, 2011, nearly one year after the limitation period already expired on May 13, 2010. ( See R&R at 4.)
Second, to the extent Petitioner argues that he was in administrative segregation and on psychiatric medications between 2009 and 2013, thus preventing him from timely filing his federal habeas petition, his own pleadings in prior actions belie that very argument. Specifically, Petitioner has filed five new actions over the last several years with this Court alone, all of which have been dismissed. See Case Nos. CV 10-3548 DOC (JCG), ED CV 12-0824 DOC (JCG), CV 12-4452 DOC (JCG), CV 12-4448 DOC (JCG), CV 12-4010 DOC (JCG). In fact, Petitioner's own inmate forms suggest that Petitioner was actively pursing his "appeal process" since at least 2009. (Obj. at 21.) Under these circumstances, the Court cannot find that it was impossible for Petitioner to file a timely federal habeas petition. See Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (only "extraordinary circumstances" warrant tolling of the limitation period); Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (mental impairment must have made it "impossible" to meet filing deadline).
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 made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.