McCraw v. McDowell
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION of United States Magistrate Judge; Granting Respondent's 7 Motion to Dismiss Petition for Writ of Habeas Corpus; Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 10/18/2017.(All non-registered users served via U.S. Mail Service)(ag)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 17cv0523-MMA (JLB)
CHARLES MCCRAW,
Petitioner,
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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;
v.
N. MCDOWELL, Warden,
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Respondent.
[Doc. No. 10]
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GRANTING RESPONDENT’S
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS;
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[Doc. No. 12]
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DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY
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Petitioner Charles McCraw (“Petitioner”), a state prisoner proceeding pro se, filed
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a Petition for a Writ of Habeas Corpus (“petition”) pursuant to Title 28 of the United
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States Code, section 2254, challenging his guilty plea conviction for battery on a non-
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confined person by a prisoner (Cal. Penal Code § 4501.5). See Doc. No. 1. Petitioner
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asserts two grounds for relief: (1) his conviction does not satisfy the requirements of due
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process; and (2) his 2009 sentence should be reduced pursuant to California Proposition
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47. See id. Respondent moves to dismiss the petition arguing that Ground One of the
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17cv0523-MMA (JLB)
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petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996
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(“AEDPA”), and that Ground Two fails to present a federal constitutional claim. See
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Doc. No. 7. Petitioner filed an opposition to Respondent’s motion to dismiss. See Doc.
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No. 9. The Court referred the matter to United States Magistrate Judge Burkhardt for
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preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and
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Civil Local Rule HC.2. Judge Burkhardt has issued a detailed and well-reasoned report
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recommending that the Court grant Respondent’s motion to dismiss. See Doc. No. 10.
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Petitioner filed an objection to the Report and Recommendation on September 15, 2017.
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See Doc. No. 12. For the reasons set forth below, the Court OVERRULES Petitioner’s
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objection and ADOPTS the Report and Recommendation in its entirety.
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DISCUSSION
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1. Standard of Review
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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §
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636(b)(1), the Court must “make a de novo determination of those portions of the report .
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. . to which objection is made,” and “may accept, reject, or modify, in whole or in part,
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the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §
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636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
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2. Analysis
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Petitioner generally objects to the recommendation that Ground One of his petition
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be dismissed as untimely under AEDPA based on equitable tolling. See Doc. No. 12 at
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2-3. Petitioner contends the Report and Recommendation emphasizes “the time frame of
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the petitioner’s filing.” Id. at 2. Petitioner essentially concedes Ground One of the
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petition is untimely, but argues that he is a “lay prisoner” and should not be treated as if
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“he were trained and astute in the law[.]” Id. at 3. “[A] litigant seeking equitable tolling
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bears the burden of establishing two elements: (1) that he has been pursuing his rights
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diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v.
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DiGuglielmo, 544 U.S. 408, 418 (2005). However, a pro se petitioner’s “lack of legal
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sophistication” or “ignorance of the law” is not an “extraordinary circumstance
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17cv0523-MMA (JLB)
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warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
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Thus, Judge Burkhardt correctly determined there is no extraordinary circumstance to
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justify equitable tolling, and as a result, Ground One of the petition is untimely.
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Accordingly, upon due consideration and after conducting a de novo review of the
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pertinent portions of the record, the Court OVERRULES Petitioner’s objection and
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ADOPTS the Report and Recommendation.
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CERTIFICATE OF APPEALABILITY
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The federal rules governing habeas cases brought by state prisoners require a
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district court that dismisses or denies a habeas petition to grant or deny a certificate of
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appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.
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§ 2254. For the reasons stated above, and those set forth in detail in Judge Burkhardt’s
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Report and Recommendation, Petitioner has not shown “that jurists of reason would find
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it debatable whether the district court was correct in its procedural ruling.” Slack v.
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McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court DECLINES to issue a
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certificate of appealability.
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CONCLUSION
Based on the foregoing, the Court OVERRULES Petitioner’s objection, ADOPTS
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the Report and Recommendation, and DISMISSES the petition with prejudice. The
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Court DECLINES to issue a certificate of appealability. The Clerk of Court is instructed
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to close the case and enter judgment in favor of Respondent.
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IT IS SO ORDERED.
Dated: October 18, 2017
HON. MICHAEL M. ANELLO
United States District Judge
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17cv0523-MMA (JLB)
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