(HC) McGraw v. Cisneros, No. 2:2023cv01264 - Document 9 (E.D. Cal. 2023)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 12/06/23 REASSIGNING case to District Judge Kimberly J. Mueller and Magistrate Judge Jeremy D. Peterson; the new case number is 2:23-cv-1264 KJM JDP (HC); and RECOMMENDING that 8 Amended Petition be dismissed as time-barred. Referred to Judge Kimberly J. Mueller; Objections to F&Rs due within 14 days. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WAYNE MCGRAW, 12 13 14 15 16 Petitioner, v. CISNEROS, Respondent. Case No. 2:23-cv-01264-JDP (HC) ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS THAT THE FIRST AMENDED PETITION BE DISMISSED WITHOUT LEAVE TO AMEND ECF No. 8 17 18 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 19 under 28 U.S.C. § 2254. I reviewed his initial petition and found that, because the challenged 20 conviction was handed down in 1992, the petition was time-barred. ECF No. 7. I gave petitioner 21 a chance to amend, however, to explain why this action should still proceed. He has now filed an 22 amended petition, ECF No. 8, and, after review, I find no basis to reconsider my conclusion that 23 the claims are time-barred. This action should be dismissed. 24 The petition is before me for preliminary review under Rule 4 of the Rules Governing 25 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 26 the habeas petition and order a response to the petition unless it “plainly appears” that the 27 28 1 1 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 2 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 The amended petition, like its predecessor, indicates that the challenged conviction 4 occurred in 1992. ECF No. 8 at 1. As I explained in my previous order, any habeas petition 5 challenging a conviction finalized before the enactment of the Anti-Terrorism and Effective 6 Death Penalty Act of 1996 must have been filed by April 23, 1997. See Calderon v. United States 7 Dist. Court, 128 F.3d 1283, 1287 (9th Cir. 1997). This action was not filed until this year. 8 Petitioner offers no credible argument as to why he is entitled to the extraordinary amount of 9 tolling required to render this action timely. At best, he argues that “for thirty six years [he] has 10 pursued exhausting attempts [to attack his conviction.” ECF No. 8 at 7. That does not justify 11 tolling of the statute of limitations, however. Accordingly, I now recommend that this action be 12 dismissed. 13 It is ORDERED that the Clerk of Court shall assign a district judge to this action. 14 Further, it is RECOMMENDED that the first amended complaint, ECF No. 8, be 15 DISMISSED as time-barred. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 objections shall be served and filed within fourteen days after service of the objections. The 22 parties are advised that failure to file objections within the specified time may waive the right to 23 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 24 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 27 28 2 1 2 IT IS SO ORDERED. 3 Dated: 4 5 December 6, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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