Opinion
Case No. ED CV 17-0330 PA (JCG)
05-01-2017
ANDREW TILLMAN, Petitioner, v. KELLY SANTORO, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed: (1) the Petition; (2) the Magistrate Judge's Report and Recommendation ("R&R"); (3) Petitioner's Objections to the R&R ("Objections"); and (4) the remaining record, and has made a de novo determination.
In his Objections, Petitioner opposes the R&R's conclusion that the Petition is untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and contends that the Petition's delay should be excused because of its reliance on a recent California Supreme Court decision, People v. Chiu, 59 Cal. 4th 155 (2014). (Objections at 2-6.) However, because Chiu involved state law issues that were resolved by a state supreme court, it cannot be relied upon for a later accrual date. See 28 U.S.C. 2244(d)(1)(C); see also Escalante v. Beard, 2016 WL 4742322, at *4 (S.D. Cal. June 2, 2016) ("To the extent [petitioner] [relies on] People v. Chiu to suggest it . . . entitle[s] him to a later start date . . . such a position would be unavailing. Chiu was a state supreme court decision that analyzed [] state law, and the alternate start date under [] AEDPA only applies to rights [] recognized by the United State Supreme Court . . . .").
Moreover, Petitioner's reliance on Chiu for equitable tolling is misplaced for the reasons discussed above.
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 be 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 stated 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: May 1, 2017
/s/_________
HON. PERCY ANDERSON
UNITED STATES DISTRICT JUDGE