Opinion
CASE NO. CV 10-9379-JST (PJW)
08-30-2011
MILTON CUMMINGS, III, Petitioner, v. ANTHONY HEDGPETH, WARDEN, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
The Court does note, however, that since the Magistrate Judge's Report and Recommendation was filed, the Ninth Circuit has held that there does not exist an actual innocence exception to the statute of limitations. Lee v. Lampert, - F.3d -, 2011 WL 3275947 (9th Cir. 2011). This does not affect the Magistrate Judge's analysis or the outcome in this case.
Further, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its procedural ruling and, therefore, a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
JOSEPHINE STATON TUCKER
UNITED STATES DISTRICT JUDGE