Opinion
NO. SA CV 15-01424-DMG (AS)
09-26-2016
TRACY WILLIAM BARTON, Petitioner, v. D. PARAMO, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which objections ("Objections"; Docket Entry No. 31) were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge in the Report and Recommendation. The Court addresses, however, certain arguments raised in the Objections below.
Petitioner's continued attempt to relitigate the dismissal of his earlier federal habeas petition (see Objections at 2-3, 5, 7, 9-16), is unavailing. As set forth in the Report and Recommendation, see note 12, Petitioner's arguments are not persuasive or even relevant.
Petitioner continues to allege that he is entitled to statutory tolling and/or equitable tolling for (a) the almost four-month gap period between the California Court' denial of Petitioner's California Court of Appeal habeas petition and the filing of Petitioner's first California Supreme Court habeas petition (from January 3, 2012 to May 1, 2012), (b) the more than four-month period between the denial of Petitioner's first California Supreme Court habeas petition and the filing of Petitioner's earlier federal habeas petition (from October 10, 2012 to February 28, 2013), (c) the pendency of Petitioner's earlier federal habeas petition (from February 28, 2013 to October 31, 2014), and (d) the pendency of Petitioner's second California Supreme Court habeas petition (from December 11, 2014 to March 25, 2015) (see Objections at 5-9). These arguments were properly considered and rejected (see Report and Recommendation at 11-18).
Petitioner contends - for the first time - that he is entitled to statutory tolling for the period during the pendency of his request for a certificate of appealability in the Ninth Circuit Court of Appeals (from December 5, 2014 to July 9, 2015) and/or for the period during the pendency of Petitioner's second California Supreme Court habeas petition and later (from late December 2014 through May 9, 2015) (see Objections at 7-9). Petitioner has failed to cite, and the Court is unaware of, any authority, supporting his contention.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: September 26, 2016
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE