Opinion
CASE NO. 4:09-cv-00456-MP-WCS.
March 16, 2011
ORDER
This matter is before the Court on Doc. 11, the Report and Recommendation of the Magistrate Judge, recommending that the petition be dismissed as untimely. The Petitioner objected, Doc. 12, and the Court conducted a de novo review. The Court agrees with the Magistrate Judge that even if the attorney's conduct tolled the time for filing the petition, the Petitioner does not explain why the 229 days he waited after learning that his 3.850 proceeding was final should not be counted toward the limitations period. The Court also rejects the argument in Petitioner's objection that something that equitably tolls the time period for a certain amount of time should be held to somehow resurrect the previous portions of the limitation period that had expired. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. The petition is denied, and the Clerk is directed to close the file.
3. For the reasons stated above the Court finds that Petitioner fails to make a substantial showing of the denial of a constitutional right and the issues are not adequate enough to deserve encouragement to proceed further. Accordingly, no certificate of appealability is appropriate in this case.DONE AND ORDERED.