Opinion
Case No. C11-5397BHS.
September 21, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 10) and Petitioner Quillon Edwards Clemons' ("Clemons") motion to voluntarily dismiss petition (Dkt. 11).
On August 22, 2011, Judge Creatura issued the R R recommending that Clemons' petition be dismissed with prejudice because Clemons' claims are unexhausted, time-barred, and Clemons failed to show that either statutory tolling or equitable tolling applies to his claims. Dkt. 10 at 5-6. On September 7, 2011, Clemons filed a motion to voluntarily dismiss his petition requesting that the Court dismiss the petition without prejudice so that he may exhaust his administrative remedies. Dkt. 11.
The Court denies Clemons' motion because, based on the record before the Court, any attempt by Clemons' to exhaust his claims and file another petition would be futile. His claims are unexhausted and time-barred by over two years.
The Court having considered the R R, Clemons' motion, and the remaining record, does hereby find and order as follows:
(1) Clemon's motion to voluntarily dismiss is DENIED;
(2) The R R is ADOPTED;
(3) A Certificate of Appealability is DENIED; and
(2) This petition is DISMISSED with prejudice.