Richard Calanche Rodarte v. M. Frink, No. 2:2014cv09605 - Document 26 (C.D. Cal. 2015)
Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Percy Anderson. IT IS ORDERED that Respondent's motion to dismiss is granted, the Petition is denied as untimely, and Judgment be entered dismissing this action with prejudice. The Court notes that along with his objections, Petitioner filed a notice of appeal. Because judgment had not yet been entered, his appeal was premature and ineffective. See Burnside v. Jacquez, 731 F.3d 874, 875 (9th Cir. 2013) ("A notice of appeal from a magistrate judge's report and recommendation is ineffective."). Should Petitioner desire to appeal from entry of Judgment, he must file another notice of appeal. (See Order for details) 5 , 14 . (bem)
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Richard Calanche Rodarte v. M. Frink Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD CALANCHE RODARTE, Petitioner, 12 v. 13 14 M. FRINK, Warden, Respondent. 15 ) ) ) ) ) ) ) ) ) ) Case No. CV 14-9605-PA (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of the previously assigned U.S. 19 Magistrate Judge. 20 Petitioner filed objections to the R&R, in which he mostly 21 repeats arguments from the Opposition to Respondent’s motion to 22 dismiss. 23 See 28 U.S.C. § 636. On November 12, 2015, Petitioner argues for the first time that he is entitled to 24 a later trigger date because he was not aware of the factual 25 basis of his claims until December 5, 2014, when the Petition was 26 constructively filed. 27 But he fails to explain how the alleged suggestive identification 28 procedures and two exonerating witnesses could not have been (Objections at 2); see § 2244(d)(1)(D). 1 Dockets.Justia.com 1 discovered before his judgment became final. 2 Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (limitation period 3 under § 2244(d)(1)(D) begins when factual predicate of claim 4 could have been discovered through exercise of due diligence, not 5 when it actually was discovered). 6 later trigger date. 7 See Ford v. Thus, he is not entitled to a Petitioner objects to the Magistrate Judge’s finding that he 8 is not entitled to equitable tolling based on his appellate 9 counsel’s actions, asserting that appellate counsel abandoned 10 him. 11 attorney abandonment may constitute an extraordinary circumstance 12 warranting equitable tolling, see Maples v. Thomas, 132 S. Ct. 13 912, 922–23 & n.7 (2012), Petitioner was not abandoned by 14 appellate counsel: on October 23, 2012, she sent Petitioner a 15 letter, stating that she had told him about the court of appeal’s 16 decision in February 2010 (see Opp’n, Ex. I). 17 not claim that she lied or was mistaken. 18 (Objections at 3, 5; see also Opp’n at 1-2.) Although Petitioner does Petitioner asserts that the Magistrate Judge ignored his 19 allegations regarding the police’s suggestive identification 20 procedures and his trial counsel’s failure to subpoena witnesses 21 who would have provided exculpatory testimony. 22 9.) 23 their timeliness. 24 qualifies for the actual-innocence exception to AEDPA’s time bar 25 because the testimony of the alleged witnesses would have proven 26 his actual innocence, as the Magistrate Judge found (R&R at 18- 27 21), he has not shown that the evidence was “new” or that it is 28 more likely than not that no reasonable juror would have (Objections at But those allegations go to the merits of his claims, not To the extent Petitioner argues that he 2 1 2 convicted him in light of that evidence. Having reviewed de novo those portions of the R&R to which 3 objections were filed, the Court accepts the findings and 4 recommendations of the Magistrate Judge. 5 Respondent’s motion to dismiss is granted, the Petition is denied 6 as untimely, and Judgment be entered dismissing this action with 7 prejudice. 8 9 IT IS ORDERED that The Court notes that along with his objections, Petitioner filed a notice of appeal. Because judgment had not yet been 10 entered, his appeal was premature and ineffective. 11 v. Jacquez, 731 F.3d 874, 875 (9th Cir. 2013) (“A notice of 12 appeal from a magistrate judge’s report and recommendation is 13 ineffective.”). 14 Judgment, he must file another notice of appeal. Should Petitioner desire to appeal from entry of 15 16 17 See Burnside DATED: December 3, 2015 PERCY ANDERSON U.S. DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3
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