Opinion
CIV 09-0058 MCA/KBM.
April 29, 2009
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
The Magistrate Judge filed her proposed findings on April 9, 2009, recommending that the federal habeas petition, whether characterized as a § 2254 or § 2241 petition, be dismissed as untimely. She also found no basis for equitable tolling. See Doc. 12. After the Magistrate Judge filed her proposed findings, Petitioner filed a "reply" to Respondent's Answer and objections. See Docs. 13, 14. I will construe both documents as "objections," consider them to be timely filed, and have carefully reviewed them de novo. See Garcia v. City of Albuquerque, 232 F.3d 760, 766-67 (10th Cir. 2000).
Petitioner maintains that the federal statute of limitations was "subjected to equitable tolling . . . from the date of conviction [because he] had with due diligence pursued all post-conviction remedies." Doc. 13 at 4. He asserts in his objections that the one-year period did not begin to run until the state post-conviction proceedings concluded in 2008. See Doc. 14 at 2. Petitioner is mistaken about how the federal statute of limitations "finality" and "tolling" periods are calculated. As explained in the Magistrate Judge's findings, however, Petitioner's misunderstanding of the law is no basis for equitable tolling.
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. The Magistrate Judge's Proposed Findings and Recommended Disposition ( Doc. 12) is ADOPTED;
2. The federal petition be dismissed with prejudice as untimely; and
3. A final order enter concurrently herewith.