United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
MICHAEL W. FITZGERALD, District Judge
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
This Court adopts the alternative set forth in the Report and Recommendation at 11 footnote 4. In this alternative, Petitioner receives statutory tolling of the AEDPA limitations period for the two periods that petitions for writ of habeas corpus were pending in the California Court of Appeal and the California Supreme Court. Evans v. Chavis, 546 U.S. 189, 192-93, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006) (treating California's system of successive petitions as a form of notice of appeal). As the Report and Recommendation correctly observes, the Petition here is woefully late even with this statutory tolling.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel ...