Opinion
CASE NO.: 1:11-CV-124 (WLS)
08-08-2012
KENNETH G. ROBERTS, Petitioner, v. CEDRIC TAYLOR, Warden Respondent.
ORDER
Before the Court is a Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed May 16, 2012. (Doc. 11). It is recommended that Respondent's Motion to Dismiss the Petition as Untimely Filed (Doc. 7) be granted. (Id. at 3).
The Recommendation provided the Parties with fourteen (14) days from the date of its service to file written objections to the recommendations therein. (Id.) The period for objections expired on Wednesday, May 30, 2012. (See generally Docket). Petitioner's Objection to the Recommendation was not filed until June 5, 2012, with no explanation provided for the delay. (Doc. 12). As such, it was not timely filed and will not be considered.
Petitioner's objections, even if they were timely, are not persuasive. Petitioner's objections focus primarily on establishing a basis for equitable tolling. However, Petitioner admits that he was aware of the deadline established by the AEDPA and chose not to file a petition until after the deadline had passed. (Doc. 12 at 1-3). The choice to file an untimely petition was fully within his control and avoidable. Accordingly, this Court finds that Petitioner's Objection (Doc. 12) fails to rebut the legally sound recommendation of Judge Langstaff.
Upon review and consideration, the objections set forth in Plaintiff's Written Objections to Report and Recommendation (Doc. 12) are OVERRULED, and United States Magistrate Judge Langstaff's May 16, 2012 Recommendation (Doc. 11) is ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein together with the reasons stated and conclusions reached herein. Accordingly, Respondent's Motion to Dismiss the Petition as Untimely Filed (Doc. 7) is GRANTED.
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THE HONORABLE W. LOUIS SANDS ,
UNITED STATES DISTRICT COURT