Opinion
No. CIV S-06-2014 FCD KJM P.
February 29, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On January 24, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case and the additional materials petitioner has submitted in support of his objections. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
In his objections, plaintiff suggests that his petition is timely because the conviction underlying the imposition of the "R" was vacated in November 2003. Objections, Ex. A. The court construes this as an argument that the factual predicate of the claim could not have been discovered until the order vacating the conviction was issued, which would then mean that the limitations period did not begin to run until November 2003. 28 U.S.C. § 2244(d)(1(D). However, the claim in the instant petition is that petitioner was not notified of his obligation to test and that he, in fact, did submit to testing. The new evidence which petitioner suggests resets the statute of limitations has no bearing on the claims before this court.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations (docket no. 22), are adopted in full; and
2. Respondent's motion to dismiss (docket no. 9) is granted.