(HC) Dunigan v. Lundy

Filing 29

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 8/29/2024 WITHDRAWING the 26 Findings and Recommendations, DENYING 27 Motion for Extension of Time to File Objections to those 26 Findings and Recommendations, and RECOMMENDING the 20 First Amended Petition be denied as moot. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these Findings and Recommendations. (Woodson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN W. DUNIGAN,

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Case No. 2:23-cv-02699-TLN-JDP (HC)

Petitioner,

ORDER

Respondent.

WITHDRAWING FINDINGS AND
RECOMMENDATIONS FOR FAILURE TO
PROSECUTE AND DENYING
PETITIONER’S MOTION FOR
EXTENSION OF TIME AS MOOT

v.
L. LUNDY,

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ECF Nos. 26 & 27

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FINDINGS AND RECOMMENDATIONS

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THAT THE AMENDED PETITION BE
DISMISSED AS UNTIMELY AND FOR
FAILURE TO STATE A COGNIZABLE
CLAIM

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ECF No. 20
OBJECTIONS DUE IN FOURTEEN DAYS

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Petitioner, a state prisoner, brings this action under section 2254 and attacks a sentence

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that appears to have been finalized in 2009. ECF No. 20 at 49. The claim appears beyond the

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one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act

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(“AEDPA”). Additionally, the petition, which runs to one-hundred and seventy pages with

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exhibits, is unintelligible and, thus, does not state a cognizable claim. For these reasons, and in

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light of petitioner’s recent filings, I will withdraw my previous recommendations for failure to
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prosecute, ECF No. 26, and submit these recommendations that the action be dismissed as

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untimely and for failure to state a claim.

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Under AEDPA, a state prisoner has one year, from the date his conviction is finalized, to

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file a federal habeas petition attacking that conviction. See Patterson v. Stewart, 251 F.3d 1243,

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1245 (9th Cir. 2001). Here, the conviction at issue appears to have been finalized in 2009. ECF

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No. 20 at 49. This action was filed in November of 2023 and thus, even with tolling, there

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appears no scenario in which this petition is timely. Additionally, the petition itself is

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incomprehensible. The substantive portion, that is the part that is not simply a haphazard

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collection of exhibits, is a lengthy screed of legal terms and case citations that is set down in

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handwriting that is difficult to read. Id. at 1-46. Despite my best efforts, I can discern no specific

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claims or legal theories in the amended petition and, thus, I find that it fails to state a cognizable

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claim. Petitioner will have a chance to address these deficiencies in his objections to these

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recommendations.

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Accordingly, it is hereby ORDERED that:

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1. The findings and recommendations at ECF No. 26 are WITHDRAWN.

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2. Petitioner’s motion for extension of time to file objections to those recommendations,

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ECF No. 27, is DENIED as moot.

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Further, it is RECOMMENDED that the amended petition, ECF No. 20, be DISMISSED
as untimely and for failure to state a cognizable claim.

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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 of

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service of these findings and recommendations, any party may file written objections with the

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court and serve a copy on all parties. Any such document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

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within fourteen days of 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. See

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).
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IT IS SO ORDERED.

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Dated:

August 29, 2024

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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