Griffin v. Foulk

Filing 21

ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS signed by District Judge Troy L. Nunley on 2/26/15. Respondent's 13 Motion to Dismiss is DENIED. Respondent shall file an answer to the petition within 60 days. The court declines to issue COA. (Manzer, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY C. GRIFFIN, 12 13 14 15 No. 2:14-cv-0837 TLN AC P Petitioner, v. ORDER F. FOULK, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 12, 2014, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within twenty-one days. Respondent has filed 23 objections to the findings and recommendations. (ECF No. 19.) Petitioner has filed a reply to the 24 objections. (ECF No. 20.) 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 27 Court finds the findings and recommendations to be supported by the record and by proper 28 1 1 analysis. 1 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The findings and recommendations filed September 12, 2014 (ECF No. 16) are 4 adopted in full; 5 2. Respondent’s motion to dismiss (ECF No. 13) is denied; 6 3. Respondent is ordered to file an answer to the petition within sixty days from the date 7 of this order; and 8 9 4. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. 10 11 IT IS SO ORDERED. 12 13 Dated: February 26, 2015 14 15 Troy L. Nunley United States District Judge 16 17 18 19 20 21 22 23 24 25 1 26 27 28 Petitioner’s reply raises new arguments that the statute of limitations did not begin to run until September 11, 2012 and, in the alternative, that the statute of limitations should be subject to equitable tolling. (ECF No. 20 at 3–8.) While the first theory may have merit, the Court need not reach either argument because the grounds for denying the motion to dismiss, as set forth in the findings and recommendations (ECF No. 16), are adequate and sufficient. 2

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