Opinion
Case No. EDCV 19-00751-DMG-MAA
04-16-2020
HENRY CARDENAS PONCE, Petitioner, v. LAURA ELDRIDGE, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge ("R&R," Doc. # 9).
The Court also has reviewed Petitioner's objections to the Report and Recommendation. ("Objections," Doc. # 10.) As required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in a de novo review of the portions of the Report and Recommendation to which Petitioner specifically has objected.
Petitioner argues the merits of his claims and recounts the circumstances of his custody. (Objections at 2-4.) The Magistrate Judge recommended, however, dismissal of the Petition as untimely. (See R&R at 21.) In the Objections, Petitioner concedes "he has failed to file his claims in a timely manner." (Objections at 4.) The Objections do not present a basis for statutory or equitable tolling that would cure the Petition of its untimeliness. (See id. at 2-4.) Thus, the Court need not reach the merits of Petitioner's claims. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).
Petitioner quotes an unidentified authority detailing the provenance of a "constructive filing" rule with respect to notices of appeal. (Objections at 6.) The quoted authority appears to be an excerpt from People v. Rivera, 226 Cal. App. 4th 1145, 1150 (2014). This state-court decision regarding notices of appeal has no bearing on the Rules Governing Section 2254 Cases in the United States District Courts, the procedural rules governing habeas proceedings in the federal courts. Nevertheless, the federal "mailbox rule" provides that a federal habeas petition is constructively filed on the date a prisoner hands the petition over to prison authorities for mailing. See Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); accord Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts. As discussed in the R&R, the Court deemed the Petition to have been constructively filed on the date it was presented for mailing. (See R&R at 3.) Even so, the Petition is untimely.
The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge, and overrules the Objections.
IT IS THEREFORE ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered denying the Petition and dismissing this action with prejudice. DATED: April 16, 2020
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE