Benitez v. Thaler

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations and DISMISSES this cause. The court DENIES the movant's request for a certificate of appealability. Signed by Judge Xavier Rodriguez. (ga)

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Benitez v. Thaler Doc. 19 In the United States District Court for the Western District of Texas D E N N I S BENITEZ v. R I C K THALER SA-10-CA-138-XR ORDER O n this date the Court considered the United States Magistrate Judge's R e p o r t and Recommendation in the above-numbered and styled case (docket no. 1 6 ) and Plaintiff's objections thereto (docket no. 18). After careful consideration, t h e Court will accept the recommendation and dismiss this case. W h e r e no party has objected to the Magistrate Judge's Report and R e c o m m e n d a t io n , the Court need not conduct a de novo review of it. See 28 U .S .C . 636(b)(1) ("A judge of the court shall make a de novo determination of t h o s e portions of the report or specified proposed findings and recommendations t o which objection is made"). In such cases, the Court need only review the R e p o r t and Recommendation and determine whether it is either clearly e r r o n e o u s or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th C ir . 1989). On the other hand, any Report or Recommendation that is objected t o requires de novo review. Such a review means that the Court will examine the entire record and will make an independent assessment of the law. In this c a s e , Petitioner objected to the Magistrate Judge's recommendation, so the Court w ill conduct a de novo review. T h e Petitioner's state court conviction became final on February 20, 2007. His AEDPA limitations period would have expired on February 20, 2008. But a ll parties agree that he is entitled to tolling of 692 days (January 25, 2008 t h r o u g h December 16, 2009). Petitioner argues that he is also entitled to tolling fr o m the date he sent a motion for reconsideration to the CCA, which was s t a m p e d "received" (not filed). Assuming arguendo (and without deciding that h e is legally entitled to additional tolling), this would have perhaps tolled lim it a t io n s from December 31, 2009 (the date the motion was stamped " r e c e iv e d " ) through January 26, 2010 (the date the CCA issued a notice stating t h a t the motion would not be entertained). Even assuming that these extra 27 d a y s should be tolled, the Petitioner was required to have filed his federal h a b e a s petition no later than February 9, 2010. It is uncontested that the p e t it io n was filed on February 17, 2010.1 A c c o r d in g l y , for the reasons discussed herein, the Court ACCEPTS the M a g is tr a t e Judge's recommendation and DISMISSES this cause. T h e Petitioner also objects to the Magistrate Judge's recommendation that a certificate of appealability be denied. A certificate of appealability may issue " o n ly if the applicant has made a substantial showing of the denial of a Petitioner's counsel argues that the tolling should apply from December 16, 2009 through January 26, 2010. The cases cited by counsel do not support Petitioner's argument that he is entitled to have the period from December 16 through December 31 tolled. 1 2 constitutional right." 28 U.S.C. 2253(c)(2). A substantial showing requires the m o v a n t to demonstrate that the issues are debatable among reasonable jurists, t h a t a court could resolve the issues differently, or that the questions are a d e q u a t e to deserve encouragement to proceed further. Hicks v. Johnson, 186 F .3 d 634, 636 (5th Cir. 1999). The district court must either issue a certificate o f appealability stating which issues satisfy the required showing, or must state t h e reasons why a certificate should not issue. Fed. R. App. P. 22(b). For the r e a s o n s explained in this Order, the movant has not made a substantial showing o f the denial of a constitutional right. Accordingly, a certificate of appealability s h o u ld not issue in this action. As a result, the Court DENIES the movant's r e q u e s t for a certificate of appealability I t is so ORDERED. S I G N E D this 4th day of November, 2010. _________________________________ X A V I E R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE 3

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