Oscar Cervantes v. William Muniz

Filing 12

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John A. Kronstadt. Accordingly, having reviewed de novo those portions of the R&R to which objections were filed, the Court accepts the findings and recommendations of the Magistrate Judge. IT IS ORDERED that the Petition is denied as untimely and Judgment be entered dismissing this action with prejudice. (See Order for details) 7 , 10 (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OSCAR CERVANTES,
Petitioner,

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vs.
WILLIAM MUNIZ, Warden,
Respondent.

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Case No. CV 15-5195-JAK (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

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The Court has reviewed the Petition, records on file, and

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Report and Recommendation of U.S. Magistrate Judge.

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U.S.C. § 636.

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filed objections to the R&R, even though he did not file any

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opposition or other response to Respondent’s motion to dismiss

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the Petition.

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is entitled to equitable tolling.

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acknowledges that he filed the Petition one day late as a result

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of a calendaring mistake (see id. at 4), but he asserts that

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Petitioner is nonetheless entitled to equitable tolling because

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his family did not retain counsel until six days before the

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expiration of the one-year limitation period (id. at 3).

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On October 1, 2015, Petitioner, through counsel,

Counsel argues for the first time that Petitioner

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(Objections at 3-4.)

He

But

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counsel does not assert that he could not have completed the

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Petition in time to file it on July 8, 2015, and indeed the

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Petition contains just a paragraph each concerning its four

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claims.

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did not retain him until nearly the expiration of the limitation

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period, offering no evidence or argument that Petitioner acted

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diligently or that some extraordinary circumstance stood in his

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way.1

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Counsel also has not explained why Petitioner’s family

Accordingly, having reviewed de novo those portions of the

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R&R to which objections were filed, the Court accepts the

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findings and recommendations of the Magistrate Judge.

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ORDERED that the Petition is denied as untimely and Judgment be

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entered dismissing this action with prejudice.

IT IS

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DATED: 10/26/15
JOHN A. KRONSTADT
U.S. DISTRICT JUDGE

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Counsel has not addressed the Magistrate Judge’s
observation (R&R at 6 n.1) that the Petition appears to be
“mixed” — that is, some of its claims have not yet been exhausted
in state court — and is likely subject to dismissal on that basis
as well.
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