Kelley v. Ducharme

Full title: Ned L. KELLEY, Petitioner-Appellant, v. Kenneth DUCHARME…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 29, 2001

18 F. App'x 527 (9th Cir. 2001)

Opinion

18 Fed.Appx. 527 (9th Cir. 2001) Ned L. KELLEY, Petitioner-Appellant, v. Kenneth DUCHARME, Respondent-Appellee. No. 00-35132. D.C. No. CV-99-05291-FDB. United States Court of Appeals, Ninth Circuit. August 29, 2001

Submitted August 13, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Kelley's request for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Petitioner, a state prisoner, sought writ of habeas corpus. The United States District Court for the Western District of Washington, Franklin D. Burgess, J., dismissed the petition as time-barred. Petitioner appealed. The Court of Appeals held that petitioner had adequate notice and opportunity to respond before the petition was dismissed.

Affirmed.

Page 528.

Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding.

Before HAWKINS, TASHIMA and GOULD, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Washington state prisoner Ned L. Kelley appeals pro se the district court's sua sponte dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred under 28 U.S.C. § 2244(d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court's dismissal of a habeas petition on statute of limitations grounds, Herbst v. Cook, 260 F.3d 1039, ----, ---- (9th Cir.2001), and we affirm.

In Herbst, we concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Id. at ----. Here, Kelley was provided adequate notice by the magistrate's order to show cause and its report and recommendation, which both recommended dismissal under § 2244(d), and an opportunity to respond through the filing of a response to the order to show cause and objections to the report and recommendation. Therefore the district court's dismissal of Kelley's petition was within its authority. Id.

AFFIRMED. ¹

1 All outstanding motions are denied as moot.