United States District Court, D. Oregon, Portland Division
OPINION AND ORER
States Magistrate Judge Jolie Russo issued her Findings and
Recommendation ("F&R") (doc. 18) in this case
on August 21, 2018. Judge Russo recommended that petitioner
Robe1 Bateson's pro se petition fr a writ of
habeas corpus pursuant to 28 U.S.C. § 2254
(doc. 2) be denied and the case be dismissed. For the reasons
explained below, the Court ADOPTS the F&R and DENIES
petitioner's petition (doc. 2).
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 judge's F&R, "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.
those portions of a magistrate judge's F&R 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 a magistrate judge's findings and
recommendations de novo if objection is made,
"but not otherwise"). Although in the absence of
objection no review is required, the 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 Rule 72(b) recommend that "[w]hen no
timely objection is filed," the Court review the
magistrate judge's recommendations for "clear error
on the face of the record."
November 17, 2017, petitioner signed his petition for writ of
habeas corpus, alleging two claims of ineffective assistance
of counsel. Respondent argues that the petition is untimely
and petitioner's claims are barred by the one-year
statute of limitations in 28 U.S.C. § 2244(d)(1)(A).
Judge Russo found that petitioner failed to file his petition
within the relevant limitations period and rejected
petitioner's claim of equitable tolling, which was based
on petitioner's assertion that his appellate attorney
negligently failed to file a direct appeal on his behalf.
filed timely objections (doc. 20), and respondent filed a
response (doc. 21). Therefore, I will review de novo
the specific portions of the F&R to which petitioner
objects to Judge Russo's determination that his
attorney's alleged inaction did not entitle petitioner to
equitable tolling. Judge Russo explained that a petitioner is
"entitled to equitable tolling 'only if he shows
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way" and prevented timely filing.' Holland, 560 U.S.
at 649 (quoting Pace v. DiGitglielmo, 544 U.S. 408,
418 (2005)). A petitioner who fails to file a timely petition
due to his own lack of diligence is not entitled to equitable
tolling. Id." F&R at 3. Judge Russo
Petitioner's arguments do not support equitable tolling.
Although petitioner maintains that an appellate attorney
thwarted his attempt to file an appeal, the attorney informed
him that he could not appeal the eighty-month sentence
imposed in his case. Pet'r Response, Att. 2 (ECF No.
17-1). Even if petitioner could establish that the
attorney's alleged inaction constituted extraordinary
circumstances and contributed to the untimeliness of his
federal petition, petitioner fails to establish that he
pursued his rights diligently. After judgment was entered on
petitioner's PCR petition in April 2017, petitioner did
not appeal and did not seek federal habeas relief until
Id. at 4. I agree with Judge Russo's analysis of
the issue and find no error in this portion of the F&R.
also asserts, for the first time, additional grounds for
equitable tolling. In his objections, petitioner stated that
he had proof of several weeks during which he could not
access the law library because of prison lock downs and
several weeks during which he could not work on his habeas
petition because he was engaged fighting out-of-district
wildfires. But petitioner did not attach any evidence to
support his assertions.
issued an Order (doc. 23) allowing petitioner to submit
additional documentation supporting his new claims.
Petitioner filed his supplemental documentation (doc. 24) on
October 29, 2018. I also granted respondent leave to reply to
petitioner's supplemental documentation, which respondent
filed on November 28, 2018. (doc. 28).
reviewing courts do not consider evidence or arguments that
were raised for the first time in objections. However,
because petitioner is pro se and his arguments and
evidence concern equitable tolling, the Court exercises its
discretion to consider petitioner's new equitable tolling
arguments and ...