United States District Court, S.D. California
DAVID L. DEW, Petitioner,
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
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.
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.
Respondents filed a motion to dismiss the petition, to which
Petitioner responded. See Doc. Nos. 7, 9.
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 and ADOPTS the Recommendation that
the petition be dismissed.
Standard of Review
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).
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.
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 ...