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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BYRON THREAT, Case No.: 17-cv-1519-JAH-MDD Petitioner, 12 13 v. 14 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. 15 16 17 18 19 INTRODUCTION 20 Pending before the Court is Shawn Hatton’s (“Respondent”) Motion to Dismiss 21 Byron Threat’s (“Petitioner”) writ of habeas corpus. [Doc. No. 4]. The Honorable Mitchell 22 D. Dembin, United States Magistrate Judge, submitted a report and recommendation 23 (“report”) to this Court, recommending Respondent’s Motion to Dismiss be granted. See 24 Doc. No. 7. No objections to the magistrate judge’s report were filed. After careful 25 consideration of the parties’ submissions, along with the entire record of this matter, this 26 Court ADOPTS the magistrate judge’s report in its entirety, GRANTS Respondent’s 27 Motion to Dismiss, and DISMISSES Petitioner’s petition for writ of habeas corpus as 28 untimely. 1 17-cv-1519-JAH-MDD BACKGROUND1 1 2 On July 25, 2003, the Petitioner pleaded guilty to first–degree murder in violation of 3 California Penal Code Section § 187(a). On September 8, 2003, Petitioner was sentenced 4 by the San Diego County Superior Court to fifty–five years to life. On July 12, 2004, the 5 California Court of Appeals affirmed his conviction and no further direct appeals to the 6 California Supreme Court or United States Supreme Court were made. On April 17, 2009, 7 Petitioner filed a habeas petition in the Superior Court which was eventually denied. On 8 July 20, 2016, Petitioner filed another habeas petition with the Superior Court, which was 9 also denied. Petitioner filed a habeas petition with the California Court of Appeal which 10 was denied on January 9, 2017. The California Supreme Court denied the petition on April 11 12, 2017. Finally, Petitioner filed the operative petition for writ of habeas corpus pursuant 12 to 28 U.S.C. § 2254 with this Court on July 27, 2017. Upon receiving Respondent’s Motion 13 to Dismiss, Judge Dembin submitted a report to this Court, recommending the petition be 14 dismissed as time–barred. Petitioner has filed no objections to the report. 15 DISCUSSION 16 I. Scope of Review 17 The district court’s role in reviewing a magistrate judge’s report and 18 recommendation is set forth in Title 28, United States Code, § 636(b)(1). Under this statute, 19 the district court “shall make a de novo determination of those portions of the report . . . to 20 which objection is made,” and “may accept, reject, modify, in whole or in part, the findings 21 or recommendations made by the magistrate [judge].” Id. It is well-settled, under Rule 22 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of 23 a magistrate judge’s report to which no specific objection is made, provided they are not 24 clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985). 25 26 27 28 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. 1 2 17-cv-1519-JAH-MDD 1 II. Analysis 2 Judge Dembin found that Petitioner’s judgment became final, under AEDPA, on 3 August 21, 2004, forty days after the Court of Appeal entered judgment affirming his 4 conviction. Thus, without the benefit of equitable tolling, Petitioner had no later than 5 August 21, 2005 to file a writ of habeas corpus in federal court. Ultimately, Judge Dembin 6 found the amended habeas petition time-barred under AEDPA because (1) Petitioner is not 7 entitled to a later start date pursuant to the Supreme Court’s holding in Johnson v. United 8 States, 135 S. Ct. 2551 (2015); (2) Petitioner is not entitled to enough statutory tolling to 9 make his petition timely; and (3) Petitioner is not entitled to equitable tolling. The Court 10 received no objections to the magistrate judge’s report, nor did Petitioner request additional 11 time in order to file objections. As such, this Court may adopt the magistrate judge’s 12 findings and conclusions presented in the report as long as they are not clearly erroneous. 13 See Thomas, 474 U.S. at 153. This Court’s careful de novo review of the record reflects 14 the magistrate judge presented a cogent analysis and, thus, finds the magistrate judge’s 15 findings and conclusions are not clearly erroneous. 16 III. Certificate of Appealability 17 Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district 18 court must issue or deny a certificate of appealability when it enters a final order adverse 19 to the applicant.” A certificate of appealability is not issued unless there is “a substantial 20 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this 21 standard, the petitioner must demonstrate that “reasonable jurists could debate whether . . 22 . the petition should have been resolved in a different manner or that the issues presented 23 were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 24 U.S. 473, 475 (2000) (citation omitted). For the reasons set forth in the magistrate judge’s 25 report and recommendation and incorporated by reference herein, the Court finds that this 26 standard has not been met and therefore DECLINES to issue a certificate of appealability 27 in this case. 28 3 17-cv-1519-JAH-MDD 1 2 CONCLUSION AND ORDER Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. The findings and conclusions of the magistrate judge presented 4 in the report and recommendation are ADOPTED in their 5 entirety; 6 2. Respondent’s Motion to Dismiss the instant petition is 7 GRANTED; 8 3. Petitioner is DENIED a certificate of appealability; and 9 4. Petitioner’s writ of habeas corpus is DISMISSED with 10 11 12 13 14 15 prejudice. IT IS SO ORDERED. DATED: April 12, 2018 _________________________________ JOHN A. HOUSTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 4 17-cv-1519-JAH-MDD

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