Opinion
NO. CV 14-7923-ODW (AS)
02-27-2015
MANUEL RODRIGUEZ CASTRO, Petitioner, v. MARION E. SPEARMAN, 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 were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
The Magistrate Judge recommended that the Petition be denied and dismissed with prejudice as time barred. Petitioner's objections reiterate the merits of the grounds raised in the Petition rather than addressing the timeliness of the Petition or explaining how his attorney's alleged ineffectiveness prevented him from filing a timely federal habeas petition. Thus, the Court has no basis to find that Petitioner is entitled to sufficient equitable tolling such that his petition is timely filed. Moreover, Petitioner's reliance on Rule 60(b), Federal Rule of Civil Procedure, which provides for relief from a Judgment or Order is premature. "A motion under Rule 60(b) must be made within a reasonable time and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Rule 60(c)(1), Fed.R.Civ.P. Accordingly, Petitioner's Objections are overruled and this Court adopts the Report and Recommendation of the Magistrate Judge.
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: February 27, 2015.
/s/_________
OTIS D. WRIGHT
UNITED STATES DISTRICT JUDGE