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Thurston v. Yates

United States District Court, E.D. California
Feb 17, 2010
No. CIV S-08-2280-LKK-GGH P (E.D. Cal. Feb. 17, 2010)

Opinion

No. CIV S-08-2280-LKK-GGH P.

February 17, 2010


ORDER


On January 29, 2010, the undersigned recommended respondent's motion to dismiss the instant habeas petition as barred by the AEDPA statute of limitations, filed on March 30, 2009, be granted. Nevertheless, respondent has filed a motion for reconsideration directed to the undersigned, pursuant to L.R. 78-230(k). In the pending Findings and Recommendations (docket # 27), pp. 4, 6, it was noted that respondent had failed to raise an argument for statutory untimeliness under Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005), based on petitioner's initial state habeas petition having been denied by the California Supreme Court with a citation to In re: Clark, 5 Cal.4th 750 (1993), but that this court would not raise it for respondent. Respondent now seeks to have the court permit belated incorporation of a Pace untimeliness argument "in order to preserve the issue," but without offering any explanation as to why the argument was not made appropriately within the motion, how the failure to include it should be construed as anything other than a waiver of any such argument for purposes of the motion, and how it would be anything but unduly prejudicial to petitioner pro se to allow retroactive incorporation of an argument which would necessarily obviate any ability by petitioner to respond.

The Amended Local Rules have been in effect since December 1, 2009, and former L.R. 78-230 is now simply designated as L.R. 230.

Accordingly, IT IS ORDERED that respondent's motion for reconsideration, filed on February 5, 2010 (docket # 28), is denied.


Summaries of

Thurston v. Yates

United States District Court, E.D. California
Feb 17, 2010
No. CIV S-08-2280-LKK-GGH P (E.D. Cal. Feb. 17, 2010)
Case details for

Thurston v. Yates

Case Details

Full title:ANDERSON P. THURSTON, Petitioner, v. JAMES YATES, Respondent

Court:United States District Court, E.D. California

Date published: Feb 17, 2010

Citations

No. CIV S-08-2280-LKK-GGH P (E.D. Cal. Feb. 17, 2010)