Torres v. Curry

Full title: GONZALO M. TORRES, Petitioner, v. B. CURRY, Warden, Respondent

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

Date published: Dec 4, 2007

CASE NO. 06cv1855 WQH (RBB) (S.D. Cal. Dec. 4, 2007)

Opinion

CASE NO. 06cv1855 WQH (RBB).

December 4, 2007

ORDER

WILLIAM HAYES, District Judge

The matter before the Court is the review of the Report and Recommendation (Doc. # 17) filed on August 23, 2007 by the United States Magistrate Judge Ruben B. Brooks.

On September 13, 2006, Petitioner Gonzalo M. Torres filed a Petition for Writ of Habeas Corpus. (Doc. # 1). On January 12, 2007, Respondent B. Curry filed a Motion to Dismiss the Petition on grounds that the Petition was barred by the statute of limitations set forth by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.A. § 2254 ("AEDPA"), and that Petitioner procedurally defaulted on all claims. (Doc. # 9). On August 23, 2007, United States Magistrate Judge Brooks issued a Report and Recommendation recommending that this Court grant the Motion to Dismiss the Petition as barred by AEDPA's statute of limitations. R R, p. 24. The parties were ordered to file any objections to the Report and Recommendation on or before September 10, 2007. Petitioner filed objections to the Report and Recommendation. (Doc. # 22).

RULING OF THE COURT

The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). The Court has reviewed de novo all aspects of the Report and Recommendation of the Magistrate Judge filed on August 23, 2007, and adopts all portions of the Report and Recommendation. The Report and Recommendation correctly concluded that the Petition should be dismissed as time-barred under AEDPA's one-year statute of limitations; that the Petition is not entitled to statutory or equitable tolling; and that the Petition should not be dismissed as procedurally defaulted.

IT IS HEREBY ORDERED that all portions of the Report and Recommendation (Doc. # 17) are ADOPTED, and the Motion to Dismiss the Petition for Writ of Habeas Corpus (Doc. # 9) is GRANTED as barred by the statute of limitations.