Opinion
3:22-cv-5245-JHC-TLF
06-16-2023
ORDER
John H. Chun United States District Judge
The Court, having reviewed Petitioner Luciano Molina Rios's habeas corpus petition (Dkt. # 1), the Report and Recommendation (R&R) of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. # 21), Petitioner's objection to the R&R (Dkt. # 22), and the remaining record, hereby finds and ORDERS:
1. Petitioner's objection does not raise any meritorious argument justifying departure from the conclusions in the R&R. Petitioner says that his habeas petition's untimeliness is due to Judge Fricke's February 21, 2023, order granting Petitioner leave to move to amend his petition. See Dkt. # 14. Petitioner explains: “The Motion to amend was an idea introduced by this Court, which I did. That Motion came about because [Judge Fricke] took almost a year to file the R&R. This untimeliness by the Court [led] to what now the Court is
deeming as an untimely petition.” Dkt. # 22 at 1. But the R&R reasoned that the petition was time-barred because it was filed on April 13, 2022, which fell outside the one-year statute of limitations under 28 U.S.C. § 2244(d). Dkt. # 21 at 4-8; see Dkt. # 1. Any motions or orders after April 13, 2022 could not affect Judge Fricke's analysis as to whether the petition was untimely. This is Petitioner's sole argument. The Court therefore overrules Petitioner's objection. The R&R is approved and adopted in its entirety. Dkt. # 21.
2. Petitioner's 28 U.S.C. § 2254 habeas corpus petition is DENIED. Dkt. # 1.
3. The Court will NOT issue a certificate of appealability under 28 U.S.C. § 2253(c)(2), for the reasons identified in the R&R.
4. Petitioner's motion to amend is DENIED. Dkt. # 15.
The Clerk is directed to send copies of this Order to Petitioner and to Judge Fricke.