Threat v. Hatton et al

Filing 8

ORDER adopting 7 the Magistrate Judge's Report and Recommendation; granting 4 Respondent's Motion to Dismiss; and dismissing Petitioner's Habeas Petition with prejudice as untimely. Petitioner is denied a certificate of appealability. Signed by Judge John A. Houston on 4/12/2018. (All non-registered users served via U.S. Mail Service)(jpp) Modified on 4/12/2018 to replace image, nef resent to all parties. (jpp).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BYRON THREAT,

Case No.: 17-cv-1519-JAH-MDD
Petitioner,

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v.

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ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION;
GRANTING RESPONDENT’S
MOTION TO DISMISS; AND
DISMISSING PETITIONER’S
HABEAS PETITION AS UNTIMELY

SHAWN HATTON, Warden,
Respondent.

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INTRODUCTION

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Pending before the Court is Shawn Hatton’s (“Respondent”) Motion to Dismiss

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Byron Threat’s (“Petitioner”) writ of habeas corpus. [Doc. No. 4]. The Honorable Mitchell

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D. Dembin, United States Magistrate Judge, submitted a report and recommendation

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(“report”) to this Court, recommending Respondent’s Motion to Dismiss be granted. See

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Doc. No. 7. No objections to the magistrate judge’s report were filed. After careful

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consideration of the parties’ submissions, along with the entire record of this matter, this

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Court ADOPTS the magistrate judge’s report in its entirety, GRANTS Respondent’s

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Motion to Dismiss, and DISMISSES Petitioner’s petition for writ of habeas corpus as

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untimely.
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17-cv-1519-JAH-MDD

BACKGROUND1

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On July 25, 2003, the Petitioner pleaded guilty to first–degree murder in violation of

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California Penal Code Section § 187(a). On September 8, 2003, Petitioner was sentenced

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by the San Diego County Superior Court to fifty–five years to life. On July 12, 2004, the

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California Court of Appeals affirmed his conviction and no further direct appeals to the

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California Supreme Court or United States Supreme Court were made. On April 17, 2009,

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Petitioner filed a habeas petition in the Superior Court which was eventually denied. On

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July 20, 2016, Petitioner filed another habeas petition with the Superior Court, which was

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also denied. Petitioner filed a habeas petition with the California Court of Appeal which

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was denied on January 9, 2017. The California Supreme Court denied the petition on April

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12, 2017. Finally, Petitioner filed the operative petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254 with this Court on July 27, 2017. Upon receiving Respondent’s Motion

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to Dismiss, Judge Dembin submitted a report to this Court, recommending the petition be

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dismissed as time–barred. Petitioner has filed no objections to the report.

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DISCUSSION

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I.

Scope of Review

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The district court’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in Title 28, United States Code, § 636(b)(1). Under this statute,

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the district court “shall make a de novo determination of those portions of the report . . . to

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

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or recommendations made by the magistrate [judge].” Id. It is well-settled, under Rule

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72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of

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a magistrate judge’s report to which no specific objection is made, provided they are not

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clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

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The underlying facts set forth in the magistrate judge’s report, to which plaintiff presents no objection,
are adopted in toto, and referenced as if fully set forth herein.
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17-cv-1519-JAH-MDD

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II.

Analysis

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Judge Dembin found that Petitioner’s judgment became final, under AEDPA, on

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August 21, 2004, forty days after the Court of Appeal entered judgment affirming his

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conviction. Thus, without the benefit of equitable tolling, Petitioner had no later than

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August 21, 2005 to file a writ of habeas corpus in federal court. Ultimately, Judge Dembin

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found the amended habeas petition time-barred under AEDPA because (1) Petitioner is not

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entitled to a later start date pursuant to the Supreme Court’s holding in Johnson v. United

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States, 135 S. Ct. 2551 (2015); (2) Petitioner is not entitled to enough statutory tolling to

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make his petition timely; and (3) Petitioner is not entitled to equitable tolling. The Court

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received no objections to the magistrate judge’s report, nor did Petitioner request additional

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time in order to file objections. As such, this Court may adopt the magistrate judge’s

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findings and conclusions presented in the report as long as they are not clearly erroneous.

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See Thomas, 474 U.S. at 153. This Court’s careful de novo review of the record reflects

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the magistrate judge presented a cogent analysis and, thus, finds the magistrate judge’s

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findings and conclusions are not clearly erroneous.

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Certificate of Appealability

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Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district

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court must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” A certificate of appealability is not issued unless there is “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this

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standard, the petitioner must demonstrate that “reasonable jurists could debate whether . .

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. the petition should have been resolved in a different manner or that the issues presented

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were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529

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U.S. 473, 475 (2000) (citation omitted). For the reasons set forth in the magistrate judge’s

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report and recommendation and incorporated by reference herein, the Court finds that this

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standard has not been met and therefore DECLINES to issue a certificate of appealability

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in this case.

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17-cv-1519-JAH-MDD

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CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The findings and conclusions of the magistrate judge presented

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in the report and recommendation are ADOPTED in their

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entirety;

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2. Respondent’s Motion to Dismiss the instant petition is

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GRANTED;

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3. Petitioner is DENIED a certificate of appealability; and

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4. Petitioner’s writ of habeas corpus is DISMISSED with

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prejudice.
IT IS SO ORDERED.
DATED: April 12, 2018
_________________________________
JOHN A. HOUSTON
United States District Judge

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17-cv-1519-JAH-MDD