Opinion
Case No. LA CV 16-2499 VBF (JCG)
06-13-2016
ALGERON WENDELL STALLWORTH, Petitioner, v. KIMBERLY A. SIEBEL, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
In his Objections, Petitioner generally reiterates the arguments set forth in the Petition. There is one issue, however, that warrants brief discussion here.
Petitioner contends that AEDPA's one-year limitation period does not apply to his federal habeas petition because the "statute that is the basis of [Petitioner's] criminal detention . . . is unconstitutional . . . ." (Objections at 2.) //
As a rule, a federal habeas petition's untimeliness may be excused where the petitioner asserts a credible claim of actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928, 1931 (2013). Here, Petitioner admits that the Petition is "statutorily untimely," and does not purport to claim that he is "actually innocent" of his crime of conviction. (See Objections at 2.) Further, Petitioner fails to cite, and the Court cannot find, any case in which an untimely federal habeas petition was considered on the merits solely because the petitioner claimed to have been convicted under an unconstitutional statute. Cf. McQuiggin, 133 S. Ct. at 1932 (observing that exceptions to AEDPA's time bar are made only in "extraordinary" cases).
Thus, on this record, the Court finds that the Petition is untimely.
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment is entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons set forth in the Report and Recommendation and above, the Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether": (1) "the petition states a valid claim of the denial of a constitutional right"; and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability. Dated: Monday, June 13, 2016
/s/_________
HON. VALERIE BAKER FAIRBANK
UNITED STATES DISTRICT JUDGE