Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dew v. Hatton

United States District Court, S.D. California

July 21, 2017

DAVID L. DEW, Petitioner,
v.
SHAWN HATTON, Warden, et al., Respondents.

          ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc., 11] GRANTING RESPONDENTS' MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS;, [Doc. No. 7], DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; [Doc. No. 1], AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          HON. MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.

         Petitioner David L. Dew (“Petitioner”), a state prisoner, filed a petition for writ of habeas corpus (“petition”) pursuant to Tile 28 of the United States Code, Section 2254, challenging the constitutionality of his conviction for second-degree felony murder in San Diego County Superior Court in light of the United States Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015). See Doc. No. 1.[1] Respondents filed a motion to dismiss the petition, to which Petitioner responded. See Doc. Nos. 7, 9.

         The matter was referred to United States Magistrate Judge Dembin for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local Rule HC.2. On March 7, 2017, Judge Dembin issued a thorough and well-reasoned Report recommending that the Court grant Respondents' motion to dismiss. See Doc. No. 11. Petitioner filed objections to the Report and Recommendation on March 27, 2017. See Doc. No. 12. For the reasons set forth below, the Court OVERRULES Petitioner's objections in substantial part[2] and ADOPTS the Recommendation that the petition be dismissed.

         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 objects to the Report and Recommendation on two grounds. First, Petitioner contends the Supreme Court's decision in Johnson constitutes a new rule of constitutional law which applies retroactively to Petitioner. Second, Petitioner asserts he is entitled to a later statute of limitations start date under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d) in light of the new rule of constitutional law announced in Johnson. See Doc. No. 12.

         AEDPA provides a one-year statute of limitations period for a state prisoner to file a federal petition for writ of habeas corpus pursuant to the judgment of the State court. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of:

(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 the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). Additionally, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.