Gerald Wilson v. States of California

Filing 22

ORDER ACCEPTING THE FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE by Judge Audrey B. Collins for Report and Recommendation 20 : (See document for further details.) 3. The Court accepts the findings and recommendation ofthe R&R. 4. Respondent's Motion to Dismiss is GRANTED and judgment shall be entered dismissing this action with prejudice. 5. All motions are denied as moot and terminated. (rla)

Download PDF
1 FILED· SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT 2 3 FEB I 72012 4 CENTRAL DISTRICT OF CALIFORNIA BY 5 OEPUTY 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 GERALD WILSON, Petitioner, 12 13 14 v. Case No. CV 11-04735 ABC (AN) ORDER ACCEPTING THE FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE STATE OF CALIFORNIA, Respondent. 15 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the file, including the 18 Magistrate Judge's Report and Recommendation ("R&R") and Petitioner's Objections 19 (dkt. 21). Further, the Court has completed a de novo review of those portions of the 20 R&R to which Petitioner has objected. 21 IT IS ORDERED that: 22 1. The Court affirms and adopts nunc pro tunc the part of the Magistrate 23 Judge's Order re Further Proceedings (dkt. 5), which deemed the Sixth Amendment 24 claim to be stricken from the Petition in light ofthe Ninth Circuit's Order filed on May 25 9,2011, in Wilson v. McDonald, No. 11-70594. 26 2. The Objections, which allege Petitioner's December 5,2007 Inmate Copy 27 summary ofhis sentence credits was not delivered to him, are overruled for the reasons 28 stated in the R&R. Notably, the R&R discusses the facts that establish the date and 1 time that document was delivered to Petitioner. (R&R at 11.) Morever, the December 2 5, 2007 Inmate Copy summary is significant to this case because it establishes 3 Petitioner knew about the status ofthe credits he seeks as of December 5, 2007. Thus, 4 "the date on which the factual predicate of the claim or claims presented could have 5 been discovered through the exercise of due diligence" was December 5, 2007, not 6 sometime in March of 2009, as he alleges in a conclusory fashion. 28 U.S.C. § 7 2244(d)( 1)(D). 8 3. The Court accepts the findings and recommendation of the R&R. 9 4. Respondent's Motion to Dismiss is GRANTED and judgment shall be 10 entered dismissing this action with prejudice. 11 5. 12 IT IS FURTHER ORDERED that the clerk ofthe Court shall serve a copy ofthis 13 All motions are denied as moot and terminated. Order and the Judgment on all counselor parties of record. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: Febluary 16,2012 AUDREY B. COLLINS CHIEF JUDGE

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?