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Kelly v. Beard

United States District Court, S.D. California

March 6, 2014

JOHN E. KELLY, Petitioner,
v.
JEFFREY BEARD, Respondent.

ORDER (1) ADOPTING THE RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE; AND (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

DANA M. SABRAW, District Judge.

Before the Court is United States Magistrate Judge Karen S. Crawford's Report and Recommendation ("R&R") recommending that the Court grant Respondent Jeffrey Beard's ("Respondent") motion to dismiss the present Petition as untimely. There are no objections to the R&R. For the reasons set forth below, this Court ADOPTS the R&R and DISMISSES the Petition in its entirety.

I.

DISCUSSION

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, challenging his 1997 conviction and sentence for robbery. Respondent asserts the Petition is barred by AEDPA's one-year statute of limitations. Magistrate Judge Crawford agreed with Respondent, and recommended that the Court grant Respondent's motion to dismiss.

A. Standard of Review

The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report...to which objection is made[, ]" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005). In this case, there are no objections to the R&R. However, there are a few modifications that need to be made to the analysis of statutory tolling.

B. Statute of Limitations

AEDPA sets out a one-year period of limitation for state habeas corpus petitions. See 28 U.S.C.A. § 2244(d)(1). It provides:

The limitation period shall run from the latest of B

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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