United States District Court, C.D. California
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
JESUS
G. BERNAL UNITED STATES DISTRICT JUDGE.
Pursuant
to 28 U.S.C. § 636, the Court has reviewed the Petition
and all pleadings, motions, and other documents filed in this
action, the Report and Recommendation of United States
Magistrate Judge (“Report”), and Petitioner's
Objections to the Report. Pursuant to 28 U.S.C. §
636(b)(1)(C) and Fed.R.Civ.P. 72(b), the Court has conducted
a de novo review of those portions of the Report to which
objections have been stated.
In his
Objections, Petitioner has made new assertions and attached
documents not previously presented in this action or in
connection with the issues addressed by the Report. A
district court has discretion, but is not required, to
consider evidence or arguments presented for the first time
in objections to a report and recommendation. See Brown
v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United
States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).
The Court has exercised its discretion to consider these new
assertions and new evidence, but concludes that they do not
affect or alter the analysis and conclusions set forth in the
Report and need not be addressed, with the following
exceptions.[1]
In the
Objections, Petitioner asserts for the first time that he is
entitled to receive statutory tolling in connection with a
newly-identified habeas petition that was filed in the wrong
court, specifically, the habeas petition proceeding he
comenced in the Monterey County Superior Court on March 23,
2012, and which terminated on May 24, 2012, Case No.
HC7681.[2] As noted in the Report, Petitioner's
limitations period began running on April 13, 2011, and
expired on April 12, 2012, unless tolled. Even if,
arguendo, 28 U.S.C. § 2244(d)(2) would apply to
this incorrectly-filed petition, at most, it tolled the
running of Petitioner's limitations period as follows:
when the petition was filed on March 23, 2012, the
limitations period, which had 20 days remaining, stopped
running; when the Monterey County Superior Court petition was
concluded on May 24, 2012, the limitations period recommenced
running the next day; and it expired 20 days later, namely,
on June 13, 2012. Petitioner did not file another state
habeas petition until November 24, 2015, which was three
years and five months later and long after his limitations
period had expired in mid-2012. Thus, affording Petitioner
statutory tolling for the belatedly-identified habeas
petition has no effect on the timeliness analysis or the
conclusion of untimeliness.
The
Objections also make the novel argument that, because
appellate courts can correct sentencing errors and because
Grounds One and Two assert sentencing errors, the Petition is
exempt from the provisions of the AEDPA. Suffice it to say,
this assertion is so obviously incorrect that it needs no
discussion.
The
Objections more clearly state what was implicit in
Petitioner's prior arguments, namely, his contention that
he is “actually innocent” of his sentence,
because he claims that errors occurred at sentencing that
render his sentence unlawful. This contention, too, needs no
further discussion; the Report (at p. 12 n.5) fully explained
the fallacy in this argument.
Finally,
the Court acknowledges Petitioner's statement that
Criminal Defense Lawyers were appointed to represent him at
trial and not on appeal and deems the Report (at p. 14, lines
11-12) so amended. This correction, however, has no effect on
the analysis and findings of the Report, which remain
correct.
Having
completed its review, the Court accepts the findings and
recommendations set forth in the Report. Accordingly,
IT IS ORDERED that this action is dismissed
with prejudice on the basis that Grounds One and Two are
untimely and Ground Three is not cognizable.
LET
JUDGMENT BE ENTERED ACCORDINGLY.
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Notes:
[1] The Objections are unsigned, in
violation of Fed.R.Civ.P. 11(a). Although this alone could
preclude consideration of them, the Court has exercised its
discretion to consider them, although that said, not being
signed or made under penalty of perjury, they lack
evidentiary competence.
[2] Pursuant to Fed.R.Evid. 201, the Court
has taken judicial notice of the docket for Case No. HC7681,
which shows that an Order issued on May 24, 2012, closing the
case, although it does not specify the nature of that Order.
Petitioner's mail log appended to the Objections as
Exhibit B shows his receipt, on June 8, 2012, of something
...