Opinion
Case No. CV 11-2525-AG (JPR)
04-27-2014
CHARLES BROWN, Petitioner, v. JAMES A. YATES, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed de novo the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. On March 7, 2014, Petitioner filed objections to the R&R, in which he mostly simply repeats the arguments in his moving papers. The Magistrate Judge pointed out in the R&R that Petitioner had not submitted any actual evidence in support of his assertions concerning when he first learned of his codefendant's sentence, and so now he has filed a declaration from his "jailhouse lawyer," saying that he alerted Petitioner to the claim on some unknown date in 2011 after reviewing Petitioner's case file. (Objections, Ex. 7.) The declaration is insufficient to show that Petitioner deserves a later trigger date under 28 U.S.C. § 2244(d)(1)(D), however, because it doesn't explain when Petitioner first received his case file or why he or someone else couldn't have earlier reviewed it and learned of the disparate sentence. Thus, for this and all the reasons in the R&R, Petitioner's new claim is untimely.
Petitioner also claims that the Magistrate Judge erred in saying he never offered sufficient facts concerning the codefendant's sentence to raise even a colorable habeas claim - as the state court found - arguing that he attached to his state-court petitions a document showing the codefendant's case number and sentence of "5 years prison" imposed a decade before Petitioner was tried and convicted. (Objections at 8.) As the state courts found, that bare information does not even come close to stating a habeas claim with the necessary particularity. Thus, as the Magistrate Judge found, Petitioner's sentencing-disparity claim is unexhausted and cannot be amended into the Petition for that reason as well.
Having made a de novo determination of those portions of the R&R to which Petitioner has filed objections, the Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that (1) the stay of this matter is lifted; (2) Petitioner's motion to amend the Petition is DENIED; and (3) Petitioner shall file a Reply to the Return to the Petition within 3 0 days of this Order, addressing only the claims in the original Petition.
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ANDREW CUILFORD
U.S. DISTRICT JUDGE