United States District Court, D. Oregon
Michael H. Simon United States District Judge.
States Magistrate Judge Mark D. Clarke issued Findings and
Recommendation in this case on January 12, 2017. ECF 52.
Judge Clarke recommended that Petitioner's Amended
Petition for Writ of Habeas Corpus (ECF 16) be denied,
Petitioner's request for an evidentiary hearing be
denied, and the Clerk of the Court be directed to enter a
judgment dismissing this proceeding.
the Federal Magistrates Act (“Act”), the Court
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). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
timely filed an objection. ECF 54. Petitioner objects to
Judge Clarke's recommendation that the Amended Petition
(ECF 16) should be denied. Petitioner argues that Judge
Clarke erred in finding that: (1) equitable tolling of the
one-year statute of limitations in 28 U.S.C. §
2244(d)(1) is not warranted; (2) Petitioner failed to present
clear and convincing evidence to overcome the presumption
that the state court correctly found that Petitioner knew
about the juror affidavit prior to 2011; and (3) Petitioner
did not explain why he could not have diligently pursued his
rights prior to 2011. The Court has reviewed de novo
those portions of Judge Clarke's Findings and
Recommendation to which Petitioner has objected, as well as
Petitioner's objections and Respondent's
response. The Court agrees with Judge Clarke's
reasoning regarding these issues and ADOPTS these portions of
the Findings and Recommendation.
also objects to Judge Clarke's finding that there is
sufficient evidence to decide Petitioner's mental state
at the relevant time and that an evidentiary hearing on this
issue is unnecessary. The Court has reviewed de novo
these portions of Judge Clarke's Findings and
Recommendation. The Court agrees with Judge Clarke's
reasoning that an evidentiary hearing is unnecessary and
ADOPTS these portions of the Findings and Recommendation. As
Judge Clarke found, the one-year statute of limitations on
Petitioner's federal habeas corpus petition began to run
on March 17, 2002, and Petitioner did not file the petition
until June 4, 2014. ECF 52 at 3. Even if the period when
Petitioner litigated his untimely state petition for
post-conviction relief (between February 22, 2012, and April
22, 2014) could be equitably tolled, Petitioner is not
entitled to an evidentiary hearing. See Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005) (holding that a
petitioner is not entitled to equitable tolling under 28
U.S.C. § 2244 (d)(2) when the state petition is not
“factual predicate of the . . . claims presented”
in the Amended Petition is an affidavit written by a juror in
the underlying criminal trial. 28 U.S.C. §
2244(d)(1)(D). Petitioner argues that an evidentiary hearing
is necessary to determine whether Petitioner “could
have . . . discovered [the juror affidavit] through the
exercise of due diligence” before 2011, 28 U.S.C.
§ 2244(d)(1)(D). The state post-conviction relief court
found that Petitioner was present at the hearing on
Petitioner's motion for a new trial in July 1999 when the
juror affidavit was discussed and that “there's
simply no way that you can assert, other than you forgot,
that [the juror affidavit] wasn't there. That you
didn't know about it in terms of the Statute of
Limitations.” ECF 42 at 39:24-40:2; see ECF
29-1 at 16. Petitioner has not presented “clear and
convincing evidence” that the state post-conviction
relief court's factual determination is
incorrect. Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); see 28 U.S.C. § 2254(d)(2).
also argues that an evidentiary hearing is necessary to
determine whether his alleged mental illness constitutes an
“‘extraordinary circumstance [that] stood in his
way' and prevented his timely filing” of the state
petition for post-conviction relief. Holland v.
Florida, 560 U.S. 631, 646 (2010) (quoting
Pace, 544 U.S. at 418). Even if Petitioner had
presented clear and convincing evidence that the state
post-conviction relief court erred in finding that he knew
about the juror affidavit in July 1999, Petitioner does not
make the requisite “non-frivolous showing that he had a
severe mental impairment during the filing period”
between March 17, 2002, and February 22, 2012. Bills v.
Clark, 628 F.3d 1092, 1100 (9th Cir. 2010). Petitioner
has presented no evidence of his mental state after July
1999, at the latest. Nor does Petitioner adequately explain
why “[a]fter the appellate court denied his claims [on
direct appeal], he did not pursue his post-conviction relief
[in state court] for almost 10 years.” ECF 52 at 7.
Petitioner objects to Judge Clarke's finding that
Petitioner's claims would be dismissed for lack of
jurisdiction because he did not exhaust them. The Court has
reviewed de novo this portion of Judge Clarke's
Findings and Recommendation. The Court considers Judge
Clarke's reasoning regarding exhaustion as dicta
and ADOPTS these portions of the Findings and Recommendation.
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Magistrates
Act “does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.”
those portions of Judge Clarke's Findings and
Recommendation to which neither party has objected, this
Court follows the recommendation of the Advisory Committee
and reviews those matters for clear error on the face of the
record. No such error is apparent.
Court ADOPTS Judge Clarke's Findings and Recommendation,
ECF 52. Petitioner's Amended Petition for Writ of Habeas
Corpus (ECF 16) is DENIED; and Petitioner's request for
an evidentiary hearing is DENIED. The Clerk of the Court
shall enter a judgment dismissing this proceeding. The Court
ISSUES a Certificate of Appealability on the basis that
Petitioner has made a substantial showing of the denial of a
constitutional right pursuant to 28 U.S.C. § 2253(c)(2).