Johnson v. Hatton

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/30/2018 RECOMMENDING respondent's 18 motion to dismiss be granted; petitioners petition for a writ of habeas corpus be dismissed as time-barred; and this case be closed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH JOHNSON,

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Petitioner,

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No. 2:16-cv-2744 KJM CKD P

v.

FINDINGS AND RECOMMENDAITONS

CRAIG KOENIG,

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Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. On October 27, 2017, the court recommended that a motion to

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dismiss brought by respondent be granted, and that this action be dismissed as time-barred. On

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April 13, 2018, the district court judge assigned to this case remanded for resolution of what the

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district court identifies as a material dispute of fact. Specifically, whether petitioner received a

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document issued by the California Court of Appeal on December 11, 2014 titled “Remittitur”

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around the time it was issued or later in 2016.

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In documents filed by petitioner after the district court’s order (ECF Nos. 29 & 32),

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petitioner appears to indicate that he does not dispute that he received the “Remittitur” around the

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time it was issued. That being the case, on July 12, 2018, the court ordered petitioner to “file a

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document in which petitioner indicates in clear terms whether he disputes that on or around

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December 16, 2014, he received, from the California Court of Appeal, a document titled

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‘Remittitur.’”

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In response to the court’s order, petitioner indicates “[t]he petitioner does not dispute he

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received the ‘remittitur’ as indicated” and “the petitioner never did aver he did not receive a

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‘remittitur’ on December 16, 2014. . .”

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Since it is not disputed that petitioner received a “Remittitur” from the California Court of

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Appeal on December 16, 2014, and for the all the reasons stated in the court’s October 27, 2017

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findings and recommendations, the court will again recommend that respondent’s motion to

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dismiss be granted, and this action be dismissed as time-barred.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss (ECF No. 18) be granted;

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2. Petitioner’s petition for a writ of habeas corpus be dismissed as time-barred; and

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3. This case be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed

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within fourteen days after service of the objections. The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 30, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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john2744.frs

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