Johnson v. State of California et al

Filing 16

ORDER Granting 13 Motion for Extension of Time to File Objections to Report and Recommendation; Construing Petitioner's Untimely Filing as Objection to Report and Recommendation; Adopting re 9 Report and Recommendations: and Granting 6 Motion to Dismiss: Petitioner's objections are OVERRULED and Petition is DENYED as untimely. Signed by Judge M. James Lorenz on 1/8/2008. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Petitioner, ) ) v. ) ) JAMES E. TILTON, et al., ) ) Respondents. ) ) __________________________________ )

MARVIN L. JOHNSON, Sr.,

Civil No. 08cv115-L(JMA) ORDER (1) EXTENDING TIME TO FILE OBJECTIONS TO REPORT AND RECOMMENDATION; (2) CONSTRUING PETITIONER'S UNTIMELY FILING AS OBJECTION TO REPORT AND RECOMMENDATION; AND (3) DENYING PETITION AS UNTIMELY

Petitioner Marvin L. Johnson, Sr., then a state prisoner proceeding pro se, filed a Petition

18 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claimed his trial 19 counsel was ineffective, his Fourth Amendment rights were violated, and the prosecutor and the 20 trial judge engaged in misconduct. The case was referred to United States Magistrate Judge Jan 21 M. Adler for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local 22 Rule 72.1(d). 23 Petitioner filed a motion to dismiss the Petition as time-barred under 28 U.S.C. § 2244(d).

24 Petitioner did not oppose the motion. On August 29, 2008, the Magistrate Judge issued a Report 25 and Recommendation recommending the Petition be denied as time-barred. On October 31, 26 2008, the court granted Petitioner's first request for extension of time. Petitioner did not timely 27 file his objections to the report and recommendation pursuant to the October 31, 2008 order. On 28 December 31, 2008 Petitioner, now on parole, filed his second Request for Extension of Time
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1 and a pleading styled as "(1) Answer to Response of James E. Tilton (2) Opposing Motion to 2 Dismiss" ("Opposition"). Petitioner claims that the parole authorities did not timely forward his 3 legal mail to him. For good cause shown, the time for Petitioner's objections to the report and 4 recommendation is hereby extended. Upon review of Petitioner's Opposition, submitted 5 concurrently with the request for extension of time, the Court construes it as objections to the 6 Report and Recommendation. 7 In reviewing a magistrate judge's report and recommendation, the district court "shall

8 make a de novo determination of those portions of the report . . . to which objection is made," 9 and "may accept, reject, or modify, in whole or in part, the findings or recommendations made 10 by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must 11 review the magistrate judge's findings and recommendations de novo if objection is made, but 12 not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) 13 (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 14 2003) (applying Reyna-Tapia to habeas review). 15 Petitioner contends his Petition was timely under Clay v. United States, 537 U.S. 522

16 (2003). This argument is without merit because Clay is inapposite because it addresses the 17 application of statute of limitations applicable to motions pursuant to 28 U.S.C. § 2255 and not 18 to the statute applicable to Petitions under 28 U.S.C. § 2254. 19 Petitioner also argues that Respondents' motion to dismiss should be denied because it

20 was filed after the due date set forth in the March 27, 2008 order. Although the motion was 21 untimely filed, which this Court does not condone, the filing of the motion demonstrates that 22 Respondents did not intend to waive the statute of limitations defense. Furthermore, Petitioner 23 was served with the motion and was given an opportunity to respond. He does not assert any 24 prejudice by the court's consideration of the issue. Even if Respondents had not raised the time 25 bar issue, a district court may consider it sua sponte. Day v. McDonough, 547 U.S. 198, 209-10 26 (2006). 27 Last, Petitioner points to his exhibits and argues that the Petition was not untimely.

28 However, the record shows that after giving Petitioner the benefit of the prison mailbox rule, see
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1 Houston v. Lack, 487 U.S. 266, 276 (1988) & Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2 2000), and the statutory tolling under 28 U.S.C. § 2244(d)(2), the Petition was filed several 3 months after the expiration of the one-year statute of limitations. 4 For the foregoing reasons, the Report and Recommendation is ADOPTED. Petitioner's

5 objections are OVERRULED, and the Petition is DISMISSED as untimely. 6 7 8 DATED: January 8, 2009 9 10 11 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. JAN M. ADLER 12 UNITED STATES MAGISTRATE JUDGE 13 ALL PARTIES/COUNSEL 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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