Knight v. Davey

Full title: DAVID D. KNIGHT, Petitioner, v. DAVE DAVEY, Warden, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 7, 2016

No. 1:15-cv-00958-LJO-SKO HC (E.D. Cal. Mar. 7, 2016)

Opinion

No. 1:15-cv-00958-LJO-SKO HC

03-07-2016

DAVID D. KNIGHT, Petitioner, v. DAVE DAVEY, Warden, Respondent.

Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DISMISS THE PETITION AS UNTIMELY

(Docs. 14, 18, and 19)

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss, contending that the petition is barred by the statute of limitations. Doc. 14. In response to the motion to dismiss, Petitioner filed a motion to stay to permit exhaustion or to dismiss unexhausted claims. Doc. 18. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.

On January 22, 2016, the Magistrate Judge filed findings and recommendations in which she recommended that the Court dismiss the petition as untimely, enter judgment for Respondent, and decline to issue a certificate of appealability. The findings and recommendations, which were served on all parties on the same date, provided that objections could be served within thirty days and replies within fourteen days after the filing of any objections. On February 19, 2016, Petitioner filed objections. Although over fourteen days have passed since Petitioner filed objections, Respondent has filed no reply. ///

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed the entire file de novo and considered Petitioner's objections, the Court declines to modify the findings and recommendations based on any point raised in the objections. Petitioner contends that since the Ninth Circuit Court of Appeals determined that it need not authorize Petitioner's filing as a second or successive petition, the petition is not barred by the statute of limitations. Because the Ninth Circuit did not consider whether Petitioner's filing was untimely, its order does not overcome the application of the statute of limitations in this case. The Court finds that the findings and recommendations are supported by the record and proper analysis.

Accordingly, the Court hereby ORDERS:

1. The findings and recommendations filed January 22, 2016, are adopted in full;

2. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed as untimely;

3. Petitioner's motion to stay or dismiss unexhausted claims is DENIED;

4. The Court DECLINES to issue a certificate of appealability; and

5. The Court DIRECTS the Clerk of Court to enter judgment for Respondent.

IT IS SO ORDERED.

Dated: March 7 , 2016

/s/ Lawrence J. O'Neill

UNITED STATES DISTRICT JUDGE