Travis Bondurant v. People of the State of California

Filing 65

ORDER ADOPTING REPORT AND RECOMMENDATION granting Respondent's Motion to Dismiss with Prejudice; and Dismissing Petition for Writ of Habeas Corpus. Certificate of Appealability denied. Signed by Judge Anthony J. Battaglia on 08/05/11.(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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TRAVIS BONDURANT

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Plaintiff,
v.

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PEOPLE OF THE STATE OF
CALIFORNIA, et al.

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Defendants.

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Case No.: 10cv1945 AJB (JMA)
ORDER ADOPTING REPORT AND
RECOMMENDATION GRANTING
RESPONDENTS’ MOTION TO
DISMISS WITH PREJUDICE; AND
DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS
[Doc. No. 28.]

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On September 8, 2010, Petitioner Travis Bondurant, a prisoner proceeding pro se and in forma
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pauperis, filed a petition for writ of habeas corpus in the United States District Court for the Eastern
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District of California. (Dkt. No. 1) On September 15, 2010, the case was transferred to the Southern
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District of California. (Dkt. No. 2 .) On September 22, 2010, the petition was dismissed without
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prejudice with leave to amend. (Dkt. No. 6.) On November 1, 2010, Petitioner filed a first amended
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petition for writ of habeas corpus. (Dkt. No. 12.) On February 2, 2011, Respondents filed a motion to
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dismiss the first amended petition as being time-barred. (Dkt. No. 28.) Petitioner filed an opposition on
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February 25, 2011. (Dkt. No. 35.) On March 29, 2011, Magistrate Judge Adler filed a report and
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recommendation recommending that the petition be dismissed with prejudice as being time-barred.
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(Dkt. No. 45.) On April 18, 2011, Petitioner filed an objection to the report and recommendation. (Dkt.
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No. 53.)
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10cv1945 AJB (JMA)

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A.

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Review of Report and Recommendation
“The district court must make a de novo determination of those portions of the report . . . to

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which objection is made,” and “may accept, reject, or modify, in whole or in part, the finding or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1); see also Federal Rule of Civil

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Procedure 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence

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of a timely objection, the Court need “only satisfy itself that there is no clear error on the face of the

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record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes (1983).

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B.

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Discussion
The report and recommendation concluded that the petition for writ of habeas corpus was time-

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barred by the one year statute of limitations. The court determined that statutory tolling could not revive

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the limitations period that had already ended and that Petitioner had not shown that equitable tolling was

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applicable. Although Petitioner filed an objection, he has not provided any legal argument or factual

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support disputing the analysis in the report and recommendation. He only states that he was subject to

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“duress, coercion, fraud, and undue influence to not file an appeal nor do my petitions timely.” These

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arguments were already considered in the report and recommendation. Moreover, he has not presented

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any supporting facts to support such an allegation. The report and recommendation discussed Peti-

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tioner’s claim of being subject to duress, fraud, coercion and undue influence in determining whether

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Petitioner is entitled to equitable tolling. The Court concluded that despite these allegations, Petitioner

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was able to file four state court petitions for writ of habeas corpus, an appeal of his criminal conviction,

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file a “coherent First Amended Petition and opposition to Respondent’s motion to dismiss within the

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deadlines set by the Court.” (Dkt. 45 at 9.) The Magistrate Judge acknowledged Petitioner’s mental

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diagnosis of schizophrenia, paranoid type; however, the court concluded that his condition was not of

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such severity that Petitioner was unable to rationally or factually understand the need to timely file a

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habeas petition. (Id.) After having reviewed the report and recommendation and the objections, the

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Court concludes that the Magistrate Judge properly applied the law to this case and adopts the report and

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recommendation in full.

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10cv1945 AJB (JMA)

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C.

Certificate of Appealability
Rule 11 of the Federal Rules Governing Section 2254 Cases, “[t]he district court must issue or

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deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of

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appealability should be issued only where the petition presents “a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of appealability “should issue when the

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prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim

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of the denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Based on the Court’s review of the petition, the Court finds no issues are debatable among jurists

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of reason and that no jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling. See Slack, 529 U.S. at 484. Accordingly, a certificate of appealability is DENIED as

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to the claims in the petition.
Conclusion

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After having reviewed the report and recommendation, and the objections, the Court ADOPTS

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the Report and Recommendation in its entirety and GRANTS Respondents’ motion to dismiss the

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petition for writ of habeas corpus with prejudice and DISMISSES the petition. The Court also DENIES

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a certificate of appealability.

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IT IS SO ORDERED.

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DATED: August 5, 2011

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Hon. Anthony J. Battaglia
U.S. District Judge

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10cv1945 AJB (JMA)