McCraw v. McDowell

Filing 13

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 17cv0523-MMA (JLB) CHARLES MCCRAW, Petitioner, 11 12 13 ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; v. N. MCDOWELL, Warden, 14 Respondent. [Doc. No. 10] 15 GRANTING RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS; 16 17 18 [Doc. No. 12] 19 DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 20 21 22 Petitioner Charles McCraw (“Petitioner”), a state prisoner proceeding pro se, filed 23 a Petition for a Writ of Habeas Corpus (“petition”) pursuant to Title 28 of the United 24 States Code, section 2254, challenging his guilty plea conviction for battery on a non- 25 confined person by a prisoner (Cal. Penal Code § 4501.5). See Doc. No. 1. Petitioner 26 asserts two grounds for relief: (1) his conviction does not satisfy the requirements of due 27 process; and (2) his 2009 sentence should be reduced pursuant to California Proposition 28 47. See id. Respondent moves to dismiss the petition arguing that Ground One of the 1 17cv0523-MMA (JLB) 1 petition is untimely under the Antiterrorism and Effective Death Penalty Act of 1996 2 (“AEDPA”), and that Ground Two fails to present a federal constitutional claim. See 3 Doc. No. 7. Petitioner filed an opposition to Respondent’s motion to dismiss. See Doc. 4 No. 9. The Court referred the matter to United States Magistrate Judge Burkhardt for 5 preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and 6 Civil Local Rule HC.2. Judge Burkhardt has issued a detailed and well-reasoned report 7 recommending that the Court grant Respondent’s motion to dismiss. See Doc. No. 10. 8 Petitioner filed an objection to the Report and Recommendation on September 15, 2017. 9 See Doc. No. 12. For the reasons set forth below, the Court OVERRULES Petitioner’s 10 objection and ADOPTS the Report and Recommendation in its entirety. 11 DISCUSSION 12 1. Standard of Review 13 Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 14 636(b)(1), the Court must “make a de novo determination of those portions of the report . 15 . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 16 the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 17 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 18 2. Analysis 19 Petitioner generally objects to the recommendation that Ground One of his petition 20 be dismissed as untimely under AEDPA based on equitable tolling. See Doc. No. 12 at 21 2-3. Petitioner contends the Report and Recommendation emphasizes “the time frame of 22 the petitioner’s filing.” Id. at 2. Petitioner essentially concedes Ground One of the 23 petition is untimely, but argues that he is a “lay prisoner” and should not be treated as if 24 “he were trained and astute in the law[.]” Id. at 3. “[A] litigant seeking equitable tolling 25 bears the burden of establishing two elements: (1) that he has been pursuing his rights 26 diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. 27 DiGuglielmo, 544 U.S. 408, 418 (2005). However, a pro se petitioner’s “lack of legal 28 sophistication” or “ignorance of the law” is not an “extraordinary circumstance 2 17cv0523-MMA (JLB) 1 warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). 2 Thus, Judge Burkhardt correctly determined there is no extraordinary circumstance to 3 justify equitable tolling, and as a result, Ground One of the petition is untimely. 4 Accordingly, upon due consideration and after conducting a de novo review of the 5 pertinent portions of the record, the Court OVERRULES Petitioner’s objection and 6 ADOPTS the Report and Recommendation. 7 CERTIFICATE OF APPEALABILITY 8 The federal rules governing habeas cases brought by state prisoners require a 9 district court that dismisses or denies a habeas petition to grant or deny a certificate of 10 appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. 11 § 2254. For the reasons stated above, and those set forth in detail in Judge Burkhardt’s 12 Report and Recommendation, Petitioner has not shown “that jurists of reason would find 13 it debatable whether the district court was correct in its procedural ruling.” Slack v. 14 McDaniel, 529 U.S. 473, 484 (2000). Accordingly, the Court DECLINES to issue a 15 certificate of appealability. 16 17 CONCLUSION Based on the foregoing, the Court OVERRULES Petitioner’s objection, ADOPTS 18 the Report and Recommendation, and DISMISSES the petition with prejudice. The 19 Court DECLINES to issue a certificate of appealability. The Clerk of Court is instructed 20 to close the case and enter judgment in favor of Respondent. 21 22 23 24 25 IT IS SO ORDERED. Dated: October 18, 2017 HON. MICHAEL M. ANELLO United States District Judge 26 27 28 3 17cv0523-MMA (JLB)

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