Wright v. Fox

Filing 16

ORDER Adopting 15 Report and Recommendation, Granting 14 Motion to Dismiss, and Denying Petition for Writ of Habeas Corpus. The Court adopts the R&Rs unobjected-to factual findings. The Court adopts the R&R and grants Respondent's motion to dismiss. The petition is denied. A certificate of appealability is denied. Signed by Judge Larry Alan Burns on 8/10/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LANE WRIGHT, Case No.: 16cv2627-LAB (JMA) Petitioner, 12 13 v. 14 ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO DISMISS, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS ROBERT W. FOX, Warden, Respondent. 15 16 17 Petitioner Christopher Lane Wright, a prisoner in state custody, filed his petition for 18 writ of habeas corpus under 28 U.S.C. '2524. Respondent moved to dismiss, and the 19 motion was referred to Magistrate Judge Jan Adler for a report and recommendation. On 20 July 11, Judge Adler issued his report and recommendation (the “R&R”), recommending 21 that the petition be denied both because Wright’s claims are procedurally defaulted and 22 because his federal petition is untimely by several years. Wright filed no objections to the 23 R&R. 24 A district court has jurisdiction to review a Magistrate Judge's report and 25 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must 26 determine de novo any part of the magistrate judge's disposition that has been properly 27 objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, 28 the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). 1 16cv2627-LAB (JMA) 1 The Court reviews de novo those portions of the R&R to which specific written objection 2 is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 3 "The statute makes it clear that the district judge must review the magistrate judge's 4 findings and recommendations de novo if objection is made, but not otherwise." Id. 5 The R&R’s factual findings include the procedural history of Wright’s claims. 6 Among other things, they show that Wright’s conviction become final on April 25, 2012, 7 when the California Court of Appeal accepted his formal abandonment of his appeal and 8 dismissed the case. He waited over three years before filing anything else in state court. 9 When he finally filed a series of habeas petitions in state court, they were denied. 10 The Court ADOPTS the R&R’s unobjected-to factual findings. These would, 11 standing alone, show that Wright’s petition is time-barred under AEDPA by several years. 12 The Court also agrees with the R&R’s conclusion that Wright’s claims are procedurally 13 defaulted. Of his three petitions, the first and second raised only state-law claims which 14 are not cognizable on federal habeas review. 1 The third was denied with citations to In re 15 Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750, 767–69 (1993). These 16 signals that the petition is being denied as untimely. 2 Walker v. Martin, 562 U.S. 307, 313 17 (2011) (“A summary denial citing Clark and Robbins means that the petition is rejected as 18 untimely.”) 19 Wright’s first and second claims were mentioned only in a petition rejected as 20 untimely and were therefore never properly presented to the California Supreme Court. 21 His third claim was never presented to that court at all. 22 23 24 25 26 27 28 1 The first petition (Mot. To Dismiss, Ex. H) mentioned federal rights only in connection with Wright’s tardy filing; he asked that his delay in seeking a modification of his sentence be granted, in part, because it was required by federal Due Process, Equal Protection, and the Eighth Amendment. (Docket no. 1410 at 11.) The remainder of his claim is based on provisions of state law that, he argued, entitled him to a sentence reduction. The second petition (Mot. To Dismiss, Ex. M) repeats the same arguments. (Docket no. 14-15 at 11.) 2 The cited portion of Robbins specifically addresses substantial delay. The pincite to Clark suggests that the petition was also rejected as repetitious or piecemeal. 2 16cv2627-LAB (JMA) 1 2 3 4 The Court agrees with the R&R’s determination that, besides being untimely, Wright’s claims are all procedurally defaulted. The Court ADOPTS the R&R and GRANTS Respondent’s motion to dismiss. The petition is DENIED. A certificate of appealability is DENIED. 5 6 7 8 IT IS SO ORDERED. Dated: August 10, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv2627-LAB (JMA)

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