Opinion
Case No. CV 13-3454 BRO(JC)
11-21-2014
RODNEY D. MITCHELL, Petitioner, v. M. BITER, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition"), the parties' submissions in connection with the Motion to Dismiss the Petition and the Supplemental Motion to Dismiss the Petition, and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), and petitioner's objections to the Report and Recommendation ("Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections with one modification.
The Court agrees with the Report and Recommendation's determination that Grounds 1-2 and 4-12 are time-barred. The Court further agrees that Ground 3 is time-barred to the extent it is predicated upon the asserted discovery of "new evidence" relating to confidential informant Karl Jones. All of the foregoing grounds in the Petition are denied and dismissed with prejudice as time-barred. However, in light of petitioner's representations in his Objections regarding the timing of his discovery of the remaining predicate for Ground 3 - the asserted discovery in March 2012 of "new evidence" that Paul Goins recanted certain statements, the Court will not dismiss such claim with prejudice as time-barred. Instead, because such sole remaining claim is unexhausted (see Report and Recommendation at 10 n.4), the Court dismisses such claim without prejudice. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
IT IS THEREFORE ORDERED that (1) the Motion to Dismiss the Petition and the Supplemental Motion to Dismiss the Petition are granted to the extent they seek dismissal with prejudice of Grounds 1-2, the Karl Jones predicate for Ground 3, and Grounds 4-12, and such grounds are dismissed with prejudice as time-barred; and (2) Ground 3, to the extent predicated on Paul Goins' alleged recantation, is denied and dismissed without prejudice as unexhausted.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on petitioner and counsel for respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: November 21, 2014
/s/_________
HONORABLE BEVERLY REID O'CONNELL
UNITED STATES DISTRICT JUDGE