Jesus Cuello Quevado v. M.D. Bitter

Filing 33

ORDER ACCEPTING REPORT AND RECOMMENDATION of United States Magistrate Judge and Denying Certificate of Appealabliity by Judge Dale S. Fischer: Accordingly, IT IS ORDERED THAT: The Report and Recommendation is approved and accepted; Respondents Motion is granted; Judgment be entered dismissing this action with prejudice; and The Clerk serve copies of this Order on the parties. See document for further information. (lwag)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JESUS CUELLO QUEVADO,
Petitioner,

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v.
CHRISTIAN PFEIFFER, Warden,

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Respondent.

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Case No. LA CV 16-3355 DSF (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of

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Habeas Corpus (“Petition”), Respondent’s motion to dismiss the Petition (“Motion”),

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[Dkt. No. 9], the Magistrate Judge’s Report and Recommendation (“R&R”), [Dkt. No.

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26], Petitioner’s objections to the Report and Recommendation (“Objections”), [Dkt.

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No. 32], and the remaining record, and has made a de novo determination.
Petitioner’s Objections generally reiterate the same arguments made in the

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Petition, and lack merit for the reasons set forth in the R&R. There is one issue

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however, that warrants brief discussion here.

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//

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In his Objections, Petitioner argues that “the month it took for prison staff to

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return [his] mail and inform[] him that he cannot send out his habeas corpus

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[materials] to his girlfriend marked [‘]legal mail[’], should be tolled.” [Dkt. No. 32 at

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9.]
First, to the extent that Petitioner claims to have been uninformed of particular

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prison regulations, like those regarding outgoing mail, such a claim is insufficient to

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warrant equitable tolling. See Rogers v. Horel, 2011 WL 227650, at *3 (N.D. Cal. Jan.

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21, 2011) (finding that a petitioner who “was unaware of any regulations that

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controlled the [Behavioral Modification Unit]” nevertheless “does not meet his burden

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of demonstrating that a basis for [equitable] tolling exists”).
Second, Petitioner fails to show that he needed to make voluminous copies of

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his trial transcripts and other documents, and there is no support for his conclusion that

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“the court could have denied the writ based on [the fact] that the claims were raised

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without supportive documentation.” [See Dkt. No. 32 at 5]; (see also R&R at 7

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(discussing Petitioner’s inability to show an extraordinary circumstance warranting

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equitable tolling)).
Third, Petitioner fails to show that he was pursuing his rights diligently, as he

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apparently never inquired into the process for sending “legal mail.” Ferguson v. Sisto,

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2010 WL 378050, at *6 (E.D. Cal. Jan. 27, 2010) (rejecting petitioner’s equitable

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tolling argument because “he did not inquire about” the reason for delayed filing).
As such, Petitioner is not entitled to equitable tolling, and his Petition remains

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untimely.

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//

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//

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Accordingly, IT IS ORDERED THAT:

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1.

The Report and Recommendation is approved and accepted;

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2.

Respondent’s Motion is granted;

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3.

Judgment be entered dismissing this action with prejudice; and

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4.

The Clerk serve copies of this Order on the parties.

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Additionally, for the reasons stated in the Report and Recommendation, the

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Court finds that Petitioner has not made a substantial showing of the denial of a

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constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Cullen v. Pinholster,

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563 U.S. 170, 181-82 (2011); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus,

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the Court declines to issue a certificate of appealability.

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DATED:

3/3/17

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HON. DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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