December 11, 2013
HENRY RICKY SOLOMON, Petitioner,
R.M. DIAZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
STEPHEN V. WILSON, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, the records and files herein, the Report and Recommendation of United States Magistrate Judge ("R&R"), and petitioner's objections thereto. The Court has conducted a de novo review of the question of whether the petition is barred by the one-year statute of limitations in 28 U.S.C. § 2244(d).
The R&R concludes that petitioner is not entitled to statutory tolling during the pendency of his California Supreme Court petition (which was presumptively filed on June 25, 2012) because the state court's summary denial of that petition on September 19, 2012 must be deemed to rest on the same grounds as the Court of Appeal's denial of petitioner's April 30, 2012 petition to that court. ( See R&R at 18-19.) The Court of Appeal held petitioner's April petition to be untimely, so it was not "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2). (R&R at 17-18.) If the "look through" presumption of Ylst v. Nunnemaker, 501 U.S. 797 (1991) applies to the California Supreme Court's summary denial of the June petition, then the June petition must also be deemed untimely and hence not properly filed for purposes of obtaining statutory tolling. (R&R at 18-19.)
In view of the Ninth Circuit's recent opinion in Cannedy v. Adams holding that federal courts should "look through" all summary denial orders of the California Supreme Court (both of habeas corpus petitions and of petitions for review), regardless of whether the last reasoned state court decision is on the merits or on procedural grounds, the Court concurs in the Magistrate Judge's conclusion that petitioner is not entitled to statutory tolling during the pendency of his California Supreme Court petition. See Cannedy v. Adams, 706 F.3d 1148, 1157-59 (9th Cir. 2013), petition for cert. filed, 82 U.S.L.W. 3247 (Oct 14, 2013) (No. 13-478).
The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
The petition for writ of habeas corpus is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.