Windust v. Vasquez

Filing 8

ORDER ACCEPTING REPORT AND RECOMMENDATION of United States Magistrate Judge by Judge Manuel L. Real: Accordingly, IT IS ORDERED THAT: The Report and Recommendation is approved and accepted; Judgment be entered dismissing this action with prejudice; a nd The Clerk serve copies of this Order on the parties.Additionally, for the reasons stated in the Report and Recommendation, theCourt finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability. 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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STEVEN WINDUST,
Petitioner,

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v.
PAT VASQUEZ, Warden,

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Respondent.

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Case No. ED CV 17-0123 R (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE

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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”), 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.
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 are two issues,

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however, that warrant brief discussion here.

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//

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In his Objections, Petitioner argues that the limitations period stated in the R&R,

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(R&R at 3), is “clearly not correct,” but fails to explain why. (Objections at 4.) In

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fact, Petitioner does not claim that he qualifies for a later accrual date, under 28 U.S.C.

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§§ 2244(d)(1)(B)-(D), and does not allege any facts that would allow for any such

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accrual. (See generally Objections.)
Petitioner also argues that he is entitled to equitable tolling because:

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(1) Petitioner could not show, until recently, “his inability to pay [the] [restitution] fine

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[that his plea agreement required]”; (2) his state habeas proceedings were “severely

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tainted”; and (3) Petitioner had “not even [] the slightest bit of legal knowledge”

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regarding his case. (Objections at 5-6.)

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First, equitable tolling is granted in “rare cases” when Petitioner can show that

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he pursued his rights diligently and an “extraordinary circumstance prevented timely

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filing,” not when Petitioner shows that he cannot endure the sentence imposed. See

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Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014).
Second, Petitioner’s conclusory assertions regarding “tainted” state habeas

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proceedings “have no evidentiary support and are manifestly insufficient to warrant

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equitable tolling.” Oglesby v. Soto, 2015 WL 4399488, at *1 (C.D. Cal. July 17,

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2015).
Third, “a petitioner’s pro se status and lack of legal knowledge or training are

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insufficient to warrant the granting of equitable tolling.” George v. McEwen, 2013

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WL 5676202, at *1 (C.D. Cal. Oct. 17, 2013).
As such, Petitioner is not entitled to equitable tolling, and the 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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The Report and Recommendation is approved and accepted;

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2.

Judgment be entered dismissing this action with prejudice; and

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3.

The Clerk serve copies of this Order on the parties.

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); Slack v. McDaniel,

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529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of

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appealability.1

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DATED: March 6, 2017

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HON. MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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Despite Petitioner’s objections to this declination, (Objections at 9), it is well-established that
a certificate of appealability is properly denied where a petition is untimely and the petitioner does
not qualify for an actual innocence exception. See Kennedy v. Cates, 2010 WL 966572 (C.D. Cal.
Mar. 11, 2010).

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