Opinion
Case No. EDCV 11-0097-GHK (JEM)
09-18-2011
TERRELL LAW, Petitioner, v. KATHLEEN ALLISON, Warden, Respondent.
ORDER ACCEPTING
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Amended Report and Recommendation of the United States Magistrate Judge. The Court has engaged in a de novo review of those portions of the Amended Report and Recommendation to which Petitioner has objected. The Court accepts the ultimate recommendation of the Magistrate Judge.
At the time the Amended Report and Recommendation was filed, the Ninth Circuit had not yet decided whether a showing of actual innocence could overcome the AEDPA statute of limitations. (See Amended Report and Recommendation at 8.) On August 2, 2011, after rehearing en banc, the Ninth Circuit issued an opinion in Lee v. Lampert, _ F.3d _, 2011 WL 3275947 (9th Cir. Aug. 2, 2011), in which it held that there is an actual innocence exception to the AEDPA statute of [imitations, id. at *3. The Court concurs with the analysis set forth in the Amended Report and Recommendation that Petitioner has failed to show that the actual innocence exception applies in his case.
IT IS HEREBY ORDERED that Respondent's Motion to Dismiss be granted and that Judgment be entered dismissing this action with prejudice.
IT IS SO ORDERED.
GEORGE H. KING
UNITED STATES DISTRICT JUDGE