Wesley W. Hunter v. Habeas Corpus

Filing 21

ORDER ADOPTING FINDINGS and RECOMMENDATIONS 19 ; DENYING Petition for Writ of Habeas Corpus; DIRECTING Clerk to Enter Judgment, signed by Chief Judge Anthony W. Ishii on 2/14/2009. Certificate of Appealability Not Required. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 9 10 11 12 WESLEY W. HUNTER, 13 Petitioner, 14 15 16 ANTHONY HEDGPETH, 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. 2254. 21 On October 31, 2008, the Magistrate Judge issued a Findings and Recommendation that 22 recommended the petition be DENIED on the merits and for violating the statute of limitations. The 23 Findings and Recommendation was served on all parties and contained notice that any objections 24 were to be filed within thirty (30) days of the date of service of the order. 25 On November 25, 2008, Petitioner filed objections to the Findings and Recommendation. 26 Petitioner first alleges that his petition was timely filed. In support of his claim that he timely filed 27 his federal petition, he now argues he should be entitled to equitable tolling for time he was in 28 U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia cd UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-00674 AWI GSA HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #19] ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT v. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia administrative segregation, out to court, in transit, or deprived of his property. The Court will not address these arguments because the petition, for the reasons stated by the Magistrate Judge, is clearly without merit and will be denied on that basis. The court has reviewed Exhibits M, N, and O. The only evidence before the court indicates that Petitioner received the Rules Violation Report on April 2, 2004, more than 24 hours prior to the April 4, 2004 conclusion of Petitioner's hearing. In accordance with the provisions of 28 U.S.C. 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued October 31, 2008, is ADOPTED IN FULL; 2. The Petition for Writ of Habeas Corpus is DENIED; 3. The Clerk of Court is DIRECTED to enter judgment; and 4. As the target of Petitioner's habeas petition is an administrative disciplinary decision, not a state court proceeding, a certificate of appealability is not necessary. Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir.2005). IT IS SO ORDERED. Dated: 0m8i78 February 14, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE cd 2

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