Thunderbirdv.Hill

United States District Court, D. OregonJun 2, 2004
Civ. No. 03-1101-CO (D. Or. Jun. 2, 2004)

Civ. No. 03-1101-CO

June 2, 2004


ORDER


ANN AIKEN, District Judge

Magistrate Judge Cooney filed his Findings and Recommendation on April 9, 2004. Magistrate Judge Cooney recommends that the petition for writ of habeas corpus be denied and the case be dismissed. Magistrate Judge Cooney found that petitioner's claims were brought after the one-year statute of limitations period under the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2244(d)(1). The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).

When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). Petitioner has filed timely objections to the Findings and Recommendation. I have, therefore, given de novo review of Judge Cooney's rulings.

I agree that the petition was filed after the applicable limitations period and that equitable tolling is not appropriate. Equitable tolling under the AEDPA is appropriate "only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (internal citations omitted). Petitioner presents no evidence that he faced such circumstances.

THEREFORE, IT IS HEREBY ORDERED that Magistrate Judge Cooney's Findings and Recommendation (doc. 26) filed April 9, 2004, is ADOPTED. The Petition for Writ of Habeas Corpus (doc. 1) is DENIED, and this case is DISMISSED.

IT IS SO ORDERED.