Opinion
Case No. EDCV 13-1004-JAK (RNB)
02-07-2014
JIMMY EDWARD COTINOLA, Petitioner, v. CONNIE GIPSON, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING REQUEST FOR
EVIDENTIARY HEARING
On January 13, 2014, the assigned Magistrate Judge issued a Report and Recommendation in which he recommended that respondent's Motion to Dismiss for untimeliness be granted. This recommendation was based on the Magistrate Judge's findings that unless a basis for tolling the statute existed, petitioner's last day to file his federal habeas petition was June 28, 2012; that petitioner was not entitled to any statutory tolling of the limitation period; that petitioner was not entitled to any equitable tolling of the limitation period; and that petitioner had not made a sufficient showing for application of the "actual innocence" exception to the AEDPA statute of limitations.
On February 3, 2014, petitioner filed objections to the Report and Recommendation. As part of his objections, petitioner requested an evidentiary hearing on his actual innocence claim.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file herein, the Report and Recommendation, and petitioner's objections thereto. Having made a de novo determination of those portions of the Report and Recommendation to which objections have been made, the Court accepts the findings and recommendations of the Magistrate Judge. Further, the Court finds that there is no need for an evidentiary hearing on petitioner's actual innocence claim.
IT THEREFORE IS ORDERED that (1) petitioner's request for an evidentiary hearing is denied; (2) respondent's Motion to Dismiss is granted; and (3) Judgment be entered dismissing this action with prejudice.
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JOHN A. KRONSTADT
UNITED STATES DISTRICT JUDGE