Opinion
CIVIL ACTION NO. 4:00-CV-423-Y
February 21, 2001
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on January 29, 2001.
3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on February 16, 2001.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, and that the Respondent's Motion to Dismiss as Time Barred under 28 U.S.C. § 2244(d) should be granted, and that the petition for writ of habeas corpus should be dismissed with prejudice, for the reasons stated in the magistrate judge's findings and conclusions.
The magistrate judge was correct to find that because Bolden's state application for writ of habeas corpus was filed after the one year period had expired, the pendency of the state writ cannot have tolling effect. Even if the Court were to credit Bolden with the pendency of the total time period for the state writ application, the addition of the twenty-seven days between December 16, 1999 and January 12, 2000 would not extend the time limit long enough to deem the instant § 2254 petition timely.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Respondent's July 14, 2000 Motion to Dismiss as Time Bared pursuant to 28 U.S.C. § 2244(d) [docket no. 14] be, and is hereby, GRANTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.