Andrew Tillman v. Kelly Santoro

Filing 11

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Percy Anderson re Report and Recommendation 4 . IT IS ORDERED THAT: 1) The Report and Recommendation is approved and accepted; 2) Judgment be entered denying the Petition and dismissing this action with prejudice; and 3) The Clerk serve copies of this Order on the parties. The Court declines to issue a certificate of appealability. (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANDREW TILLMAN,
Petitioner,

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v.
KELLY SANTORO, Warden,
Respondent.

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Case No. ED CV 17-0330 PA (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: (1) the Petition; (2) the

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Magistrate Judge’s Report and Recommendation (“R&R”); (3) Petitioner’s Objections

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to the R&R (“Objections”); and (4) the remaining record, and has made a de novo

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determination.

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In his Objections, Petitioner opposes the R&R’s conclusion that the Petition is

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untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and

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contends that the Petition’s delay should be excused because of its reliance on a recent

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California Supreme Court decision, People v. Chiu, 59 Cal. 4th 155 (2014).

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(Objections at 2-6.) However, because Chiu involved state law issues that were

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resolved by a state supreme court, it cannot be relied upon for a later accrual date. See
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28 U.S.C. 2244(d)(1)(C); see also Escalante v. Beard, 2016 WL 4742322, at *4 (S.D.

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Cal. June 2, 2016) (“To the extent [petitioner] [relies on] People v. Chiu to suggest it

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. . . entitle[s] him to a later start date . . . such a position would be unavailing. Chiu

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was a state supreme court decision that analyzed [] state law, and the alternate start

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date under [] AEDPA only applies to rights [] recognized by the United State Supreme

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Court . . . .”).

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Moreover, Petitioner’s reliance on Chiu for equitable tolling is misplaced for the
reasons discussed above.
Thus, on this record, the Court finds that the Petition is untimely.

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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.

Judgment be entered denying the Petition and dismissing this action with

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prejudice; and

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3.

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

The Clerk serve copies of this Order on the parties.

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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: May 1, 2017
HON. PERCY ANDERSON
UNITED STATES DISTRICT JUDGE

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