Amon Morrison v. Jeff Macomber

Filing 31

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge George H. Wu for Report and Recommendation 21 . (SEE ORDER FOR FURTHER DETAILS) IT IS THEREFORE ORDERED that respondents Motion to Dismiss 10 is granted, and Judgment will be entered denying the Petition and dismissing this action with prejudice. (iva)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AMON MORRISON, 12 13 14 15 16 Petitioner, v. JEFF MACOMBER, Warden, Respondent. ___________________________ ) ) ) ) ) ) ) ) ) ) ) Case No. CV 16-68-GW (SP) ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on 19 file, and the Report and Recommendation of the United States Magistrate Judge. 20 Further, the Court has engaged in a de novo review of those portions of the Report to 21 which petitioner has objected. 22 With his Objections, petitioner submitted additional documents that indicate 23 attorney Sammy Weiss may indeed have been retained to file a habeas petition for 24 petitioner, although the documents do not clearly reveal why he did not do so. 25 Attachment 1 to the Objections (which was also Exhibit 1 to the Opposition to the 26 Motion to Dismiss) is an email from stating Weiss’s 27 last date of service (to an unspecified person who may or may not have been 28 petitioner) was in July 2015. Attachment 2 to the Objections (which is new) is a 1 letter from Weiss himself stating he was hired by petitioner to “handle his Appeal 2 and Habeas Corpus,” and represented him from May 2013 to May 2015. The other 3 attachments to the Objections do not address the date Weiss’s period of retention 4 ended. 5 Even if Weiss actually promised to file a habeas petition for petitioner and 6 failed to do so, and even assuming this constituted abandonment, petitioner still has 7 made no showing he pursued his rights diligently so as to warrant equitable tolling 8 of the limitation period. There is no indication petitioner himself did anything to 9 follow up with Weiss during Weiss’s two-year period of retention to make sure he 10 had filed a habeas petition. See Rudin v. Myles, 781 F.3d 1043, 1056 (9th Cir. 2014) 11 (petitioner found diligent where she made “repeated attempts” to contact counsel 12 who did not respond, and then filed motion to substitute counsel, as she was 13 precluded by local rules from filing own collateral review brief). Further, the record 14 shows Weiss’s last day of service was in either May 2015 or July 2015, both of 15 which are before the applicable limitation period expired on August 9, 2015. 16 Petitioner has made no showing that, once Weiss ceased to represent him, petitioner 17 made an effort to file a habeas petition before the August 9, 2015 deadline; instead, 18 petitioner waited until December 2015 to file the instant Petition raising the same 19 claims he raised in his prior case in this Court. 20 As modified by this discussion of the additional documents included with 21 petitioner’s Objections, the Court accepts the findings and recommendation of the 22 Magistrate Judge. IT IS THEREFORE ORDERED that respondent’s Motion to 23 Dismiss is granted, and Judgment will be entered denying the Petition and 24 dismissing this action with prejudice. 25 26 DATED: October 8, 2017 ______________________________ HONORABLE GEORGE H. WU UNITED STATES DISTRICT JUDGE 27 28 2

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?