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Payne v. Gipson

United States District Court, C.D. California

July 10, 2015

LEE THIEL PAYNE, Petitioner,
v.
CONNIE GIPSON, Warden, et al., Respondents.

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY AND EVIDENTIARY HEARING

MARGARET M. MORROW, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, both parties' Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

Petitioner's Objections reiterate the arguments made in the Second Amended Petition and Reply, and lack merit for the reasons set forth in the Report and Recommendation.

Respondents' Objections oppose the Report and Recommendation's finding that certain of Petitioner's claims were timely. It is true that new claims must "relate back to claims properly contained in the original petition - that is, those claims that were exhausted at the time of filing." King v. Ryan, 564 F.3d 1133, 1142 (9th Cir. 2009) (citing Mayle v. Felix, 545 U.S. 644 (2005)).

The Court nonetheless agrees with the Magistrate Judge's finding that Petitioner's claims can and should be rejected on their merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (in the interest of judicial economy, the court may address a petition's merits without reaching procedural issues); Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (declining "to reach the complex questions lurking in the time bar of the AEDPA" where the district court "decided the case on the merits, and on the merits it was right as a matter of law").

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Second Amended Petition and dismissing this action with prejudice;
3. All pending motions are denied as moot and terminated; and
4. 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.

Nor is Petitioner entitled to an evidentiary hearing. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (AEDPA "requires an examination of the state court-decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.").


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