Andrew Kwasi Donkor v. Kim Holland

Filing 53

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge George H. Wu Re Report and Recommendation (Issued) 46 : (see document image for specifics). In light of the following exceptions, IT THEREFORE IS ORDERED that respondents Motion to Dismiss 42 is granted and that Judgment be entered denying the First Amended Petition and dismissing this action with prejudice. (ad)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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ANDREW KWASI DONKOR,

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Petitioner,

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vs.
KIM HOLLAND, Warden,
Respondent.

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Case No. EDCV 14-01408-GW (DTB)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended

21 Petition, all the records and files herein, and the Report and Recommendation of the
22 United States Magistrate Judge. Objections to the Report and Recommendation have
23 been filed herein. Having made a de novo determination of those portions of the
24 Report and Recommendation to which objections have been made, the Court concurs
25 with and accepts the findings, conclusions and recommendations of the Magistrate
26 Judge with the following exceptions: At page 8, lines 4-19 of the Report and
27 Recommendation, the Magistrate Judge sets out the test for determining whether gap
28 tolling is appropriate for two filings in the same court. In that test, there is no mention
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1 of whether any delay is or is not reasonable. At page 9, line 23 through page 10, line
2 23, the Report and Recommendation then introduces a requirement of “reasonable”
3 delay, but it appears to draw that requirement from cases involving filings in different
4 state courts. Here, the question is whether there should be gap tolling between the
5 filing of petitions in the same court, i.e. the California Supreme Court. See Report and
6 Recommendation at page 8, lines 1-4. The Court declines to adopt the analysis in the
7 Report and Recommendation regarding “reasonable delay,” set forth at page 8, line
8 25 through page 9, line 13.
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At page 6, line 24, a comma should be inserted between “15” and “2013.”
At page 8, line 18, the decision of “Stancie v. Clay” should read “Stancle v.

11 Clay.”
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In light of the following exceptions, IT THEREFORE IS ORDERED that

13 respondent’s Motion to Dismiss is granted and that Judgment be entered denying the
14 First Amended Petition and dismissing this action with prejudice.
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16 DATED: June 12, 2017

GEORGE H. WU
UNITED STATES DISTRICT JUDGE

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