Opinion
Case No. CV 15-5195-JAK (JPR)
10-26-2015
OSCAR CERVANTES, Petitioner, v. WILLIAM MUNIZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
The Court has reviewed the Petition, records on file, and Report and Recommendation of U.S. Magistrate Judge. See 28 U.S.C. § 636. On October 1, 2015, Petitioner, through counsel, filed objections to the R&R, even though he did not file any opposition or other response to Respondent's motion to dismiss the Petition. Counsel argues for the first time that Petitioner is entitled to equitable tolling. (Objections at 3-4.) He acknowledges that he filed the Petition one day late as a result of a calendaring mistake (see id. at 4), but he asserts that Petitioner is nonetheless entitled to equitable tolling because his family did not retain counsel until six days before the expiration of the one-year limitation period (id. at 3). But counsel does not assert that he could not have completed the Petition in time to file it on July 8, 2015, and indeed the Petition contains just a paragraph each concerning its four claims. Counsel also has not explained why Petitioner's family did not retain him until nearly the expiration of the limitation period, offering no evidence or argument that Petitioner acted diligently or that some extraordinary circumstance stood in his way.
Counsel has not addressed the Magistrate Judge's observation (R&R at 6 n.1) that the Petition appears to be "mixed" — that is, some of its claims have not yet been exhausted in state court — and is likely subject to dismissal on that basis as well. --------
Accordingly, having reviewed de novo those portions of the R&R to which objections were filed, the Court accepts the findings and recommendations of the Magistrate Judge. IT IS ORDERED that the Petition is denied as untimely and Judgment be entered dismissing this action with prejudice. DATED: 10/26/15
/s/_________
JOHN A. KRONSTADT
U.S. DISTRICT JUDGE