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Luu v. Beard

United States District Court, S.D. California

June 12, 2014

PHUOC LUU, Petitioner,
v.
JEFFREY BEARD, Secretary, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 12] OVERRULING PETITIONER'S OBJECTIONS [Doc. No. 13] GRANTING MOTION TO DISMISS DISMISSING PETITIONER'S PETITION WITH PREJUDICE [Doc. No. 1]

MICHAEL M. ANELLO, District Judge

Petitioner Phuoc Luu, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254. See Doc. No. 1. Petitioner alleges he was denied due process during a prison investigation regarding his purported involvement in a conspiracy to murder a prison staff member. Petitioner also seeks to expunge all references to this allegation from his central file. Respondent filed a motion to dismiss, asserting two grounds for dismissal: (1) the petition is untimely under the statute of limitations, and (2) the petition does not seek cognizable federal habeas relief. See Doc. No. 11. Petitioner did not file an opposition to Respondent's motion.

The matter was referred to United States Magistrate Judge Ruben B. Brooks for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. Judge Brooks issued a well-reasoned and thorough Report recommending the Court grant Respondent's motion to dismiss the petition as untimely. See Doc. No. 12. Petitioner filed objections to the Report and Recommendation. See Doc. No. 13.

DISCUSSION

1. Standard of Review

Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the 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); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

2. Analysis

Petitioner does not object to the magistrate judge's reasoning or conclusions, but instead attempts to assert a claim of actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). Specifically, Petitioner contends the statute of limitations should not bar his petition because he is actually innocent of the prison disciplinary charge of conspiracy. However, "[t]he Schlup exception involves a narrow class of cases... implicating a fundamental miscarriage of justice because a constitutional violation has probably resulted in the conviction of one who is actually innocent." Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (quoting Schlup, 513 U.S. at 314-15) (internal quotation marks omitted). Here, Petitioner does not challenge his underlying state court conviction, [1] but rather the outcome of a "prison disciplinary matter." Pet. at 1. Therefore, Schlup is inapplicable. See Schlup, 513 U.S. at 324 (recognizing "the claimed injustice is that constitutional error has resulted in the conviction of one who is actually innocent of the crime"); see also Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) ("In order to pass through the Schlup gateway, a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.") (internal citation and quotations omitted). Accordingly, the Court OVERRULES Petitioner's objections and ADOPTS the Report and Recommendation in its entirety.

CERTIFICATE OF APPEALABILITY

Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner has not made the requisite showing. Accordingly, the Court DECLINES to issue a certificate of appealability as to any claims or issues raised in his petition.

CONCLUSION

Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety, OVERRULES Petitioner's Objections, GRANTS Respondent's Motion to Dismiss, and DISMISSES Petitioner's petition with prejudice. The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.


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