Jose Jesus Pulido v. Kim Holland

Filing 25

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Christina A. Snyder for Report and Recommendation (Issued) 22 (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSE JESUS PULIDO,
Petitioner,

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vs.

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KIM HOLLAND, WARDEN,

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Respondent.

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CASE NO. CV 14-07545 CAS (RZ)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Report and

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Recommendation of United States Magistrate Judge. Further, the Court has reviewed

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de novo those portions of the Report to which Petitioner has objected.

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Petitioner’s two-page Objections are based entirely on equitable tolling. He

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had the opportunity to raise that issue, but did not, in his petition and in his opposition to

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Respondent’s motion to dismiss the action as untimely. (Petitioner did vaguely state,

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among other conclusory comments in his eight-line opposition brief, that “the reason for

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the delay was . . . a delu[]ge of erroneous legal advi[c]e,” but that is insufficient. ECF 20.)

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The Court exercises its discretion to disregard such an issue improperly raised for the first

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time in Objections to the Magistrate Judge’s Report. See Sossa v. Diaz, 729 F.3d 1225,

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1230-31 (9th Cir. 2013). Although Petitioner, like the petitioner in Sossa, is pro se, he

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differs in that he is not “making a novel claim in an unsettled area of law.” Id. at 1231.

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Petitioner thus does not merit the same discretionary concession granted to the petitioner

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in Sossa.

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Even if the Court were to exercise its discretion to consider the equitable

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tolling argument, the Court would reject it on its merits. Petitioner cites various cases in

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which counsel’s shockingly poor conduct justified equitable tolling, but he fails to point

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to any evidence of comparably extraordinary attorney misconduct in this case. He

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complains principally that his trial counsel advised him that he (Petitioner) did not have the

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right to appeal. That advice appears to have been correct. Petitioner’s conviction arose

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from a no-contest plea bargain whereby Petitioner expressly waived his right to appeal.

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See unlabeled Exhibit (“Waiver of Constitutional Rights and Plea”) to Supp. to Pet.

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(“Request to Amend”) (ECF 5), at p. 6. Petitioner fails to show the extraordinary

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circumstances justifying equitable tolling.

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The Court accepts the findings and recommendations of the Magistrate Judge.

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DATED: 5/4/15

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CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE

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