Billy Joe Spencer v. P D Brazelton, No. 2:2012cv06631 - Document 13 (C.D. Cal. 2012)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS by Judge Manuel L. Real for Report and Recommendation 6 : (See document for details.) IT IS ORDERED that the Petition is denied without leave to amend and Judgment be entered dismissing this action with prejudice. (rla)
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Billy Joe Spencer v. P D Brazelton Doc. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 J FILED · SOUTHERNDJVISiONCLERK, U.S DISTRICT COURl [ NOV ;- 7 2012 CENT BY L DiSTRICT <5FCALIFORNIA DEPUTY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA )Case No. CV 12-6631-R (JPR) BILLY JOE SPENCER, ) ) Petitioner, )ORDER ACCEPTING FINDINGS AND )RECOMMENDATIONS OF U.S. )MAGISTRATE JUDGE vs. P.D. BRAZELTON, Warden, ) ) ) ) ) Respondent. Pursuant to 28 u.s.c. § 636, the Court has reviewed de novo the Petition, records on file, and Report and Recommendation of the U.S. Magistrate Judge. On November 7, 2012, Petitioner filed Objections to the Report and Recommendation, which recommended that the Petition be dismissed as time barred. Petitioner claims that his initial state supreme court habeas petition was "properly filed" in that court, despite its rejection of it, because he in fact filed two separate copies of his petition, in separate envelopes, only one of which had the wrong caption. (Objections at 2-3.) Petitioner asserts that the proof of service he attached to his August 29, 2012 reply to the Court's 1 Dockets.Justia.com 1 2 Order to Show Cause supports his claim. 1 (Id.) Petitioner's objections are unavailing for two reasons. 3 First, assuming the proof of service is what it purports to be, 4 it shows only that Petitioner mailed two separate copies of the 5 state petition to the supreme court; it in no way demonstrates 6 that one of them was properly captioned. 7 Reply at Ex. A (proof of service stating that Petitioner served 8 "two writs of habeas corpus in separate envelopes").) 9 the state court rejected the petition for filing not only because (See Aug. 29, 2012 Second, 10 it contained the wrong caption but because Petitioner did not 11 submit a sufficient number of copies. 12 even if the state court erred in its finding that the petition 13 was improperly captioned, Petitioner has presented no evidence or 14 argument that it was wrong to reject the petition because 15 Petitioner had provided an inadequate number of copies of it. 16 (See id. at Ex. B.) Thus, For all these reasons, the Court accepts the findings and 17 recommendations of the Magistrate Judge and finds that the 18 Petition is untimely under 28 U.S.C. 19 § 2244(d). IT THEREFORE IS ORDERED that (1) the Petition is denied 20 without leave to amend and (2) 21 this action with prejudice. 22 DATED: Nov. 27, 2012 dismissing 23 JUDGE 24 25 26 27 28 1 Petitioner complains that the Court never returned a conformed, file-stamped copy of his reply to him. (Objections at 3.) The Court's internal docketing system shows otherwise. If Petitioner never received the copy that the Court mailed to him, he may request another as long as he provides a copy of the prison's mail log indicating that he received no mail from the Court during the month of September 2012. 2
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