Sundberg v. Oreol

Filing 56

ORDER ADOPTING REPORT AND RECOMMENDATION: Both Report and Recommendations in this matter (ECF Nos. 28 , 54 ) are adopted in their entirety. Respondent's Motion to Dismiss (ECF No. 13 ) is granted. The Petition (ECF No. 1 ) is dismissed with prejudice as untimely. A certificate of appealability is granted. Signed by Judge William Q. Hayes on 3/28/2019.(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KELLY FRITHIOF SUNDBERG,

Case No.: 16-cv-3127-WQH-AGS

Petitioner,

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v.

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ORDER

HAROLD OREOL, Executive
Director of Patton State Hospital,

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Respondent.

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HAYES, Judge:

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Before the Court is the Second Report and Recommendation of United States

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Magistrate Judge Andrew G. Schopler recommending Respondent’s Motion to Dismiss be

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granted and Petitioner’s Petition for Writ of Habeas Corpus be dismissed as untimely.

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(ECF No. 54).

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I.

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On December 30, 2016, Petitioner filed the Petition for Writ of Habeas Corpus.

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(ECF No. 1). On August 4, 2017, Respondent filed a Motion to Dismiss. (ECF No. 13).

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On January 10, 2018, Judge Schopler issued a Report and Recommendation recommending

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the Petition be dismissed. (ECF No. 28). On March 6, 2018, this Court granted Petitioner’s

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request to be appointed counsel. (ECF No. 41). On June 8, 2018, Counsel for Petitioner

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filed Objections to the Report and Recommendation. (ECF No. 45). On June 22, 2018,

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Respondent filed a Response to Petitioner’s Objections. (ECF No. 46). On September 21,

Background

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16-cv-3127-WQH-AGS

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2018, Counsel for Petitioner filed a Supplemental Response to the Motion to Dismiss.

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(ECF No. 52). On February 27, 2019, Judge Schopler issued a Second Report and

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Recommendation addressing arguments made by Petitioner’s appointed Counsel. (ECF

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No. 54). On March 13, 2019, Counsel for Petitioner filed Objections to the Second Report

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and Recommendation. (ECF No. 55).

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II.

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b).

Ruling of the Court

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After conducting a de novo review of the Second Report and Recommendation and

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considering the entire file, including Petitioner’s objections, the Court finds that the Second

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Report and Recommendation correctly determined that the Petition is untimely because

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Petitioner is not entitled to statutory or equitable tolling. The Court adopts the Second

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Report and Recommendation. Respondent’s Motion to Dismiss is granted, and the Petition

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is dismissed with prejudice.

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A certificate of appealability must be obtained by a petitioner in order to pursue an

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appeal from a final order in a section 2254 habeas corpus proceeding. See 28 U.S.C. §

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2253(c)(1)(A); Fed R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing

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Section 2254 Cases, “[t]he district court must issue or deny a certificate of appealability

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

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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). It must appear that reasonable jurists could

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find the district court’s assessment of the petitioner’s constitutional claims debatable or

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wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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16-cv-3127-WQH-AGS

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The Court finds that reasonable jurists could disagree as to whether Petitioner is

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entitled to equitable tolling under the unique facts of this case. The Court grants Petitioner

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a certificate of appealability as to whether Petitioner is entitled to equitable tolling.

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III.

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IT IS HEREBY ORDERED that both Report and Recommendations in this matter

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(ECF Nos. 28, 54) are adopted in their entirety. IT IS FURTHER ORDERED that

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Respondent’s Motion to Dismiss (ECF No. 13) is GRANTED. The Petition (ECF No. 1)

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is DISMISSED with prejudice as untimely. A certificate of appealability is GRANTED.

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The Clerk shall enter judgment in favor of Respondent and against Petitioner and close the

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Conclusion

case.
Dated: March 28, 2019

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