Opinion
Case No. ED CV 16-1099 AB (JCG)
09-06-2016
DERNALE THOMPSON, Petitioner, v. DAVID B. LONG, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the Magistrate Judge's Report and Recommendation ("R&R"), Petitioner's Objections to the Report and Recommendation ("Objections"), and the remaining record, and has made a de novo determination.
In his Objections, Petitioner raises one issue that warrants brief discussion here.
Petitioner argues, without citing to any authority, that AEDPA's one-year limitation period does not apply unless Petitioner has "already had an evidentiary hearing in the State Court," or "has failed to act with 'reasonable diligence' in unsuccessfully attempting to develop[] the claim in the State Court." (Objections at 2.) Petitioner fails to cite, and the Court cannot find, any support for Petitioner's contentions. See Hood v. Galaza, 47 F. Supp. 2d 1144, 1150 (S.D. Cal. 1999) (noting that AEDPA's one-year limitation period applies to petitions for writ of habeas corpus filed by state prisoners in federal court after AEDPA's effective date of April 24, 1996).
Petitioner's remaining Objections concern the merits of his habeas claim, which the Court does not address. (See Objections at 2-6); see also Williams v. Beard, 2015 WL 7308656, at *1 n.1 (S.D. Cal. Nov. 19, 2015) ("Petitioner's Objections include arguments addressing the merits of the Petition. Because the . . . Report and Recommendation [is] based on untimeliness the Court does not address the merits arguments.")
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment is entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons set forth in the Report and Recommendation and above, the Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability. DATED: September 6, 2016
/s/_________
HON. ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE