Opinion
Case No. CV 14-1277-JLS (JPR)
12-03-2014
BERNIE GOMES, Petitioner, v. JOE A. LIZARRAGA, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records and files of this case, and the Report and Recommendation ("R&R") of the U.S. Magistrate Judge. The R&R recommended that the Petition be dismissed because it was untimely by more than four months. On September 22, 2014, Petitioner filed objections to the R&R, in which he mostly repeats arguments in the Petition and Reply or cites cases for general principles of law without applying that law to the facts of his case. The Court has considered and rejected those objections.
In his "Objection # 2," Petitioner claims, without explanation, that his California Supreme Court habeas petition was in fact properly filed "because the court treated it as a motion for post conviction relief." (Objections at 2.) But as the R&R noted, his supreme court habeas petition was rejected as untimely (R&R at 3-4, 10), and the court's notice to that effect nowhere mentions any motion for post-conviction relief; indeed, the letter is captioned, "Re: C074624 - In re Bernie Gomes on Habeas Corpus" (see Lodged Ex. 5). The Court's review of the California Appellate Courts' Case Information website confirms that Petitioner never properly filed anything in the state supreme court.
Accordingly, having made a de novo determination of those portions of the Report and Recommendation to which objections have been filed, the Court concurs with and accepts the Magistrate Judge's recommendation that the Petition be denied as untimely. IT THEREFORE IS ORDERED that Respondent's motion to dismiss is GRANTED and Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: December 3, 2014
/s/_________
JOSEPHINE L. STATON
U.S. DISTRICT JUDGE