Dernale Thompson v. David B. Lone

Filing 9

ORDER ACCEPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY by Judge Andre Birotte Jr for Report and Recommendation (Issued), 5 . (See document for details.) (dv)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DERNALE THOMPSON,
Petitioner,
v.

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DAVID B. LONG, Warden,
Respondent.

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Case No. ED CV 16-1099 AB (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

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

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Habeas Corpus (“Petition”), the Magistrate Judge’s Report and Recommendation

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(“R&R”), Petitioner’s Objections to the Report and Recommendation (“Objections”),

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and the remaining record, and has made a de novo determination.

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In his Objections, Petitioner raises one issue that warrants brief discussion here.

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Petitioner argues, without citing to any authority, that AEDPA’s one-year

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limitation period does not apply unless Petitioner has “already had an evidentiary

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hearing in the State Court,” or “has failed to act with ‘reasonable diligence’ in

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unsuccessfully attempting to develop[] the claim in the State Court.” (Objections at 2.)

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Petitioner fails to cite, and the Court cannot find, any support for Petitioner’s
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contentions. See Hood v. Galaza, 47 F. Supp. 2d 1144, 1150 (S.D. Cal. 1999) (noting

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that AEDPA’s one-year limitation period applies to petitions for writ of habeas corpus

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filed by state prisoners in federal court after AEDPA’s effective date of April 24,

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1996).

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Petitioner’s remaining Objections concern the merits of his habeas claim,

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which the Court does not address. (See Objections at 2-6); see also Williams v. Beard,

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2015 WL 7308656, at *1 n.1 (S.D. Cal. Nov. 19, 2015) (“Petitioner’s Objections

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include arguments addressing the merits of the Petition. Because the . . . Report and

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Recommendation [is] based on untimeliness the Court does not address the merits

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arguments.”)

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Accordingly, IT IS ORDERED THAT:

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The Report and Recommendation is approved and accepted;

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2.

Judgment is entered denying the Petition and dismissing this action with
prejudice; and

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3.

The Clerk serve copies of this Order on the parties.

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Additionally, for the reasons set forth in the Report and Recommendation and

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above, the Court finds that Petitioner has not shown that “jurists of reason would find

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it debatable whether”: (1) “the petition states a valid claim of the denial of a

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constitutional right”; and (2) “the district court was correct in its procedural ruling.”

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See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a

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certificate of appealability.

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DATED: September 6, 2016

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HON. ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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