Opinion
CASE NO. 4:10-cv-00302-MP-WCS.
October 21, 2011
ORDER
This matter is before the Court on Doc. 10, Report and Recommendation of the Magistrate Judge, recommending that the § 2254 petition in this case be denied as untimely. The plaintiff filed objections, Doc. 11, and the Court has made a de novo determination of those portions of the Report and Recommendation to which objection was made. 28 U.S.C. § 636(b)(1)(C).
Upon consideration, the Court agrees with the Magistrate Judge that petitioner should have presented and exhausted his federal claims in state court in 1994 and should have then filed a § 2254 petition within the one year limitations period. Instead he filed a premature § 2254 petition before exhausting his state court remedies and then spent years litigating and apparently relitigating various claims in state court. Eventually, he allowed several years to pass after the order denying his last motion in state court became final. Thus, his current petition is untimely and cannot relate back to his prior petition. Accordingly, it is hereby
ORDERED AND ADJUDGED:
DONE AND ORDERED.
The Report and Recommendation of the Magistrate Judge is accepted and incorporated herein. The § 2254 petition in this case is dismissed as untimely, and the Clerk is directed to close the file.