Opinion
Civil No. 05cv1655-LAB(POR).
March 28, 2006
REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Kevin A. Johnson, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He challenges his San Diego Superior Court conviction for murder and robbery with the use of a deadly weapon. (Docket No. 1 at 9.) Respondent moves to dismiss the Petition on the following grounds: (1) the Petition is barred by the one-year statute of limitations imposed on such petitions; and (2) in the alternative, if the Court does not find the Petition to be time-barred, the claims presented in the Petition are procedurally defaulted.
This Court has considered the Petition for Writ of Habeas Corpus, Respondent's Motion to Dismiss, Petitioner's Opposition, and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, this Court recommends Respondent's Motion to Dismiss be GRANTED and the Petition for Writ of Habeas Corpus be DISMISSED WITH PREJUDICE.
II. Procedural Background
A. State Court ProceedingsOn May 9, 1990, a jury found Petitioner guilty of one count of murder under California Penal Code § 187(a), and three counts of robbery under California Penal Code § 211. (Lodgment No. 1 at 147-50.) The jury also found that Petitioner used a firearm in the commission of all four offenses as proscribed by California Penal Code § 12022.5(a). (Lodgment No. 1 at 147-50.) The Superior Court sentenced Petitioner to an indeterminate term of 27 years to life. (Lodgment No. 1 at 253.)
Cal. Penal Code § 187(a) states: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."
Cal. Penal Code § 211 states: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
Cal. Penal Code § 12022.5(a) is as follows:
Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.
Petitioner then filed a direct appeal in the California Court of Appeal, Fourth Appellate District, Division One, asserting that the trial court erred: (1) in allowing a statement to be used by the prosecution that was allegedly inadmissible hearsay, and (2) in denying Petitioner's motion to sever two of the robbery counts from the robbery/homicide case. (Lodgment No. 2 at 12, 20.) On January 30, 1992, the California Court of Appeal affirmed the judgment. (Lodgment No. 4 at 1.) Petitioner did not petition for review of the Court of Appeal's decision.
On February 17, 1994, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, alleging the same grounds for relief as in his direct appeal. (Lodgment No. 5 at 3, 4.) The California Supreme Court denied the petition on March 30, 1994, by citing to In re Waltreus, 62 Cal.2d 218, 225 (Cal. 1965), which indicated that the claim was procedurally barred. (Lodgment No. 6 at 1.) The Waltreus rule prevents any issue that was raised and denied on appeal from being renewed in a petition for writ of habeas corpus. Forrest v. Vasquez, 75 F.3d 562, 563 (9th Cir. 1996).
On August 22, 2000, Petitioner filed a second Petition for Writ of Habeas Corpus in the San Diego County Superior Court. (Lodgment No. 10 at 1.) Petitioner put forth eleven grounds for relief: (1) the trial court violated Petitioner's Fourteenth Amendment rights when it gave a felony murder instruction to the jury; (2) the trial court denied Petitioner a fair trial by granting continuances over defense counsel's objections; (3) the failure to disclose a witness's motivation for testifying to defense counsel and the jury constituted prosecutorial misconduct; (4) trial counsel's failure to object to identification testimony constituted ineffective assistance of counsel; (5) the trial court erred when it did not allow the defense to know about an interview of a prosecution witness; (6) the suppression of evidence was prosecutorial misconduct; (7) the suppression of evidence by the police resulted in a violation of due process; (8) the prosecution violated Petitioner's Fourteenth Amendment rights when it committed "Griffin" error during closing argument; (9) the trial court erred when it allowed the prosecution to make improper comments about Petitioner not testifying; (10) the prosecution used "deceptive or reprehensible methods" during its closing arguments; and (11) the trial court erred in giving improper jury instructions that violated "Griffin" law. (Lodgment No. 10.) On October 2, 2000, the Superior Court denied the petition in a reasoned opinion, holding that the claims were untimely, three of the claims were barred because they should have been brought on appeal but were not, and two of the claims failed to present a prima facie case. (Lodgment No. 11.)
The date on which the Petition was filed was not provided by either the Petition itself nor the Superior Court's order denying the Petition. (Lodgment Nos. 10, 11.) However, since both Petitioner and Respondent claim that the Petition was filed on August 22, 2000, this Court will use that date as the filing date. (Docket No. 8 at 10; Docket No. 14 at 10.)
As noted by Respondent, although the Petition listed thirteen claims, claims three and four were identical. (Lodgment No. 10 at 8, 9.) Additionally, claims twelve and thirteen both involved improper jury instructions in violation of "Griffin" law.
The Fifth Amendment prohibits a prosecutor from commenting on a defendant's decision not to testify. Griffin v. California, 380 U.S. 609, 615 (1965). To constitute Griffin error, the challenged statements must be "manifestly intended to call attention to the defendant's failure to testify, or [be] or such a character that the jury would naturally and necessarily take them to be a comment on the failure to testify." Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).
Petitioner proceeded to the California Court of Appeal, Fourth District, where he presented a Petition for Writ of Habeas Corpus on October 12, 2000. (Lodgment No. 12.) Petitioner presented the same grounds for relief as in his previous petition to the Superior Court. (Lodgment No. 12.) On January 22, 2001, the Court of Appeal denied the petition for failure to show that the claims had already been presented before the Superior Court. (Lodgment No. 13.)
In his petition to the Court of Appeal, Petitioner did not mention that these claims had previously been raised at the Superior Court.
On March 19, 2001, Petitioner filed a Petition for Writ of Habeas Corpus at the California Supreme Court, alleging the same grounds for relief as in his previous petitions to the Superior Court and the Court of Appeal. (Lodgment No. 14.) The California Supreme Court denied the petition on August 29, 2001, citing In re Dixon, 41 Cal. 2d 756 (1953), In re Swain, 34 Cal. 2d 300, 304 (1949), In re Duvall, 9 Cal. 4th 464, 474 (1995), In re Clark, 5 Cal. 4th 750 (1993) (1993), and In re Robbins, 18 Cal. 4th 770, 780 (1998). (Lodgment No. 15.)
Petitioner filed a second Petition for Writ of Habeas Corpus in the California Supreme Court on March 1, 2002. (Lodgment No. 16.) Petitioner presented four grounds for relief: (1) trial counsel was ineffective because he failed to properly investigate the chosen theory of defense; (2) the prosecution and police department failed to disclose key evidence to defense counsel when ordered to do so by the trial court; (3) the prosecutor committed prejudicial "Griffin" error during closing arguments; and (4) the trial court's direction to the jury to find Petitioner guilty constituted misconduct. (Lodgment No. 16 at 3-6.) The California Supreme Court denied the petition without discussion on September 11, 2002, citing In re Clark, 5 Cal. 4th at 750, and In re Robbins, 18 Cal. 4th at 780. (Lodgment No. 17.)
On January 27, 2003, Petitioner filed a third Petition for Writ of Habeas Corpus in the California Supreme Court. (Lodgment No. 18.) However, this petition did not attack Petitioner's original conviction, but instead concerned some possible disciplinary action taken against Petitioner while in custody for distribution and sale of controlled substances. (Lodgment No. 18 at 7.) The California Supreme Court denied this petition on September 17, 2003, citing In re Dexter, 25 Cal. 3d 921 (1979).
On March 1, 2004, Petitioner filed a fourth Petition for Writ of Habeas Corpus in the California Supreme Court. (Lodgment No. 20.) As with the previous petition, this petition did not attack Petitioner's criminal conviction but again concerned disciplinary action taken against Petitioner while in custody. (Lodgment No. 20 at 8.) The California Supreme Court denied this petition on December 22, 2004, citing In re Dexter, 25 Cal. 3d 921 (1979), and In re Clark, 5 Cal. 4th at 750. (Lodgment No. 21.)
B. Federal Court Proceedings
Petitioner has filed two federal Petitions for Writs of Habeas Corpus. (Lodgment No. 7; Docket No. 1.) On January 6, 1997, Petitioner filed his first federal Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of California. (Lodgment No. 7 at 1.) Petitioner presented four claims for relief: (1) the admission of a prior out-of-court statement by a witness was prejudicial error; (2) the trial court's denial of Petitioner's severance motion denied him a fair trial; (3) the trial court's abuse of discretion in denying Petitioner's severance motion resulted in substantial prejudice; and (4) the admission of an out-of-court statement denied Petitioner's Sixth Amendment right to confront witnesses. (Lodgment No. 7 at 5, 6.) However, Petitioner subsequently filed a motion on June 16, 1997, to have his petition voluntarily dismissed without prejudice in order to exhaust his claims before the California Supreme Court. (Lodgment No. 8 at 1.) On June 16, 1997, the District Court granted Petitioner's motion and dismissed his case without prejudice. (Lodgment No. 8 at 1.)
Petitioner originally filed his second Petition in the United States District Court for the Central District of California on August 12, 2005. The Petition was subsequently referred to the Southern District on August 19, 2005. (Docket No. 1.) Petitioner presented four grounds for relief: (1) trial counsel was ineffective because he failed to properly investigate the chosen theory of defense; (2) the prosecution and police department's failure to comply with the trial court's order to disclose key evidence to defense counsel constituted misconduct; (3) the prosecution committed prejudicial "Griffin" error during the closing arguments; and (4) the trial court's direction to the jury to find Petitioner guilty constituted misconduct. (Docket No. 1.)
On November 18, 2005, Respondent moved to dismiss the Petition, arguing that the Petition is statutorily barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act; and if not time-barred, the Petition should be dismissed because it is procedurally defaulted. (Docket No. 8 at 3.) On December 19, 2005, Petitioner filed an Opposition to Respondent's Motion to Dismiss. (Docket No. 14.)
III. Discussion
A. Statute of Limitations
Respondent first contends that the Petition is barred by the one-year statute of limitations applicable to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, applies to all federal habeas petitions filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). The instant Petition was filed on August 12, 2005, and is therefore governed by AEDPA.
AEDPA provides for a one-year limitations period for state prisoners to file a federal habeas petition in federal court. The section states, in pertinent part:
(d)(1) A 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d).
AEDPA's one-year statute of limitations begins to run on "the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). To appeal an adverse ruling by the Superior Court, a party must file a notice of appeal within sixty days after rendition of the judgment. Cal. Penal Code § 1237.5; Cal. R. Ct. 31(d). If no notice of appeal is filed, the judgment becomes final after the sixty days for seeking such review expires. Id.
In the instant case, Petitioner appealed the initial decision of the California Superior Court. On January 30, 1992, the California Court of Appeal affirmed his conviction. (Lodgment No. 4 at 1.) Petitioner did not appeal the court's decision and, accordingly, the judgment became final forty days later on March 10, 1992. Normally, because the judgment became final prior to the enactment of AEDPA, the statute of limitations would have began to run one year from April 24, 1996, the date AEDPA went into effect, and would have expired on April 24, 1997. See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005). However, in his Opposition to the Motion to Dismiss, Petitioner contends that the statute of limitations should not have started running until July 2005, because he could not have discovered the factual predicate for his claims as he was allegedly unable to review the trial court transcripts. See 28 U.S.C. § 2244(d)(1)(D); (Docket No. 14 at 18.)
The period to seek discretionary review of a Court of Appeal's decision in the California Supreme Court expires forty days after the date on which the Court of Appeal files its opinion. See Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (citing Cal. Rules of Court 24(a), 28(b), 45(a); Cal. Civ. Proc. Code § 12a).
The year 1992 was a leap year so the month of February contained 29 days, instead of the usual 28.
Assuming arguendo the truthfulness of Petitioner's claims that his trial court transcripts were confiscated when he was placed in administrative segregation from March 21, 2002 until October 17, 2002, and that he had difficulty retrieving his legal papers afterwards, he does not explain why he was unable, through the exercise of due diligence, to discover the factual predicates in the almost twelve years before his documents were allegedly confiscated. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance."). Here, the factual predicates in Petitioner's claim, such as failure to properly investigate a theory of defense or improper jury instructions, should have been readily apparent immediately following the trial. Furthermore, Petitioner must have known the factual predicates because he included the same issues as in the instant federal habeas petition in a state habeas action filed on March 1, 2002, prior to the alleged confiscation of his documents on March 21, 2002. (Lodgment No. 16.) Thus, the statute of limitations properly began to run on April 24, 1996, because Petitioner either must have known or should have known of the factual predicates.
Absent any tolling of AEDPA's limitations period, Petitioner's federal petition should have been filed before April 24, 1997. Petitioner filed his first federal habeas petition on January 6, 1997, which was prior to the expiration of the one year limit. (Lodgment No. 7 at 1.) However, that Petition was voluntarily dismissed by Petitioner on June 16, 1997, in order to exhaust state remedies. (Lodgment No. 9 at 1.) Petitioner filed the instant Petition on August 12, 2005, over eight years after the dismissal of his original habeas petition. Thus, absent any statutory or equitable tolling, the petition is untimely.
When a District Court dismisses a habeas petition for containing both exhausted and unexhausted claims, without granting a stay-and-abeyance, it must notify the petitioner that, barring equitable tolling, he will be time-barred under AEDPA unless he chooses to proceed with only his exhausted claims. Valerio v. Crawford, 306 F.3d 742, 771 (9th Cir. 2002). In the instant case, however, Petitioner voluntarily dismissed his federal habeas petition because all of the claims were unexhausted. Furthermore, even if Petitioner erroneously believed that he was granted a stay on June 16, 1997, the District Court informed Petitioner on June 17, 1998, that his case was dismissed without a stav-and-abeyance order, which was still 431 days before he filed his next state habeas petition. (Lodgment No. 9.)
B. Statutory Tolling
Respondent contends that the instant Petition expired more than two years before any possible statutory tolling under the AEDPA, because over two years elapsed between the dismissal of Petitioner's original federal habeas petition and the filing of Petitioner's subsequent state habeas petition. (Docket No. 8 at 18.) AEDPA's statutory tolling provision provides:
Respondent also contends that the statute of limitations would have expired in the period following the California Supreme Court's denial of Petitioner's state habeas petition on August 29, 2001. (Lodgment No. 15.) However, it is not necessary for this Court to address this issue because the statute of limitations had clearly expired prior to the California Supreme Court's denial of that petition.
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2).
AEDPA's one-year limitations period is tolled during the period of time that a petitioner seeks post-conviction relief in state court. Under section 2244(d)(2), the word "state" applies to the entire phrase "post-conviction or other collateral review." Duncan v. Walker, 533 U.S. 167, 172 (2001). Thus, the statute of limitations is tolled until the claim "has achieved final resolution through the State's post-conviction procedures." Carey v. Saffold, 536 U.S. 214, 220 (2002). Final resolution is achieved when a state petitioner "completes a full round of collateral review." Id. at 219-20. As a result, there is no statutory tolling between the end of the first round of collateral review and the beginning of the second round, because no case is "pending" during this period. Biggs v. Duncan, 339 F.3d 1045, 1046-47 (9th Cir. 2003).
Petitioner's limitations period began to run on June 16, 1997, the date his federal habeas petition was voluntarily dismissed. (Lodgment No. 8.) The limitations period expired one year later on June 16, 1998. After the dismissal of his original federal habeas application, Petitioner did not file a state habeas petition until August 22, 2000, over two years after the expiration date. (Lodgment No. 10.) Statutory tolling does not apply to this period because Petitioner's original state habeas petition had already completed "a full round of collateral review," because it was denied by the California Supreme Court. See Carey, 536 U.S. at 220. As a result, no case was "pending" during this time which would allow for tolling of the statute of limitations. See Biggs, 339 F.3d at 1046-47. Furthermore, a state court petition filed after the expiration of the limitations period does not toll the limitations period. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Thus, the statutory tolling provision does not bring Petitioner within the statute of limitations.
The limitations period is not tolled for the thirty days before the judgment became final because a plaintiff may not appeal a voluntary dismissal without prejudice. See Coursen v. A.H. Robbins Co., 764 F.2d 1329, 1342 (9th Cir. 1985), corrected 773 F.2d 1049 (9th Cir. 1985). Furthermore, even if the limitations period was tolled for thirty days, Petitioner's action would still be outside the statute of limitations.
Respondent contends that this state habeas petition was effectively Petitioner's first collateral attack on his conviction, since Petitioner's original state habeas claim, filed on February 17, 1994, only contained the same claims that were denied on direct review (Docket No. 8 at 18.). As a result, the statute of limitations would not be tolled because statutory tolling does not exist from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). However, it is not necessary for this Court to determine the status of Petitioner's original state habeas petition because regardless of its status, Petitioner had achieved "final resolution" on a complete round of collateral review and thus tolling would not apply. See Carey, 536 U.S. at 219-20.
C. Equitable Tolling
Respondent also contends that equitable tolling does not apply to the instant Petition because Petitioner has not demonstrated extraordinary circumstances beyond his control that would have prevented Petitioner from filing a timely habeas petition.
Equitable tolling applies to AEDPA's one-year statute of limitations. Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998). To be entitled to equitable tolling, a prisoner must demonstrate "extraordinary circumstances beyond the prisoner's control" that "made it impossible to file a petition on time." Allen v. Lewis, 255 F.3d 798, 799-800 (9th Cir. 2001). The petitioner must show that the extraordinary circumstances "proximately caused the late filing." Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (finding that petitioner was entitled to equitable tolling "since prison officials' misconduct proximately caused the late filing").
In the present case, Petitioner does not put forth any circumstances, extraordinary or otherwise, that would have prevented him from filing a timely petition in the period after the voluntary dismissal of his first federal habeas petition. As noted above, Petitioner alleged in his Opposition to Respondent's Motion to Dismiss that he was unable to access his legal papers while placed in administrative segregation. (Docket No. 14 at 18.) However, assuming Petitioner's allegations to be true, he only claimed to be in administrative segregation from March 21, 2002, through October 17, 2002. (Docket No. 14 at 18.) Thus, any possible equitable tolling due to his placement in administrative segregation would not apply to the period between June 16, 1997 and August 22, 2000. Furthermore, Petitioner has not presented any claims of "extraordinary circumstances" that would have prevented him from timely filing a claim during this period. (Docket No. 14.) Accordingly, the doctrine of equitable tolling does not prevent the instant Petition from being time-barred.
D. Procedural Default
Respondent further argues that all Petitioner's claims should be dismissed for being procedurally defaulted. Federal courts are precluded from reviewing the merits of a claim when the state court has denied relief on the basis of an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30 (1990). For a state procedural rule to be "independent," the state law basis for the decision must not be interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). To be "adequate," the state procedural rule must be strictly or regularly followed and consistently applied. Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996).
Both Petitioner and Respondent argue the procedural default issue in the alternative. This Court addresses the procedural default issue for that reason and in case a court on appeal disagrees with this Court's statute of limitations analysis. However, the instant petition has already been found to be time-barred because it violates the statute of limitations established by AEDPA.
In the present case, the California Supreme Court denied Petitioner's second state habeas petition on September 11, 2002, citing In re Clark, 5 Cal. 4th at 750 (stating that a petitioner is required to "explain and justify any significant delay in seeking habeas corpus relief"), and In re Robbins, 18 Cal. 4th at 780 (holding that an untimely petition will only be considered on the merits if a petitioner shows good cause for the delay or if the claim falls within an exception to the untimeliness bar). (Lodgment No. 17.) The Ninth Circuit has previously determined that California's untimeliness rule, as expressed in Clark and Robbins, constituted an independent state procedural ground. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
In contrast, a petitioner may still challenge the Clark/Robbins procedural bars on the basis of adequacy. Id. at 586. However, a petitioner must put forth "specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. Here, Petitioner has not alleged the inadequacy of the state procedure, let alone cited to cases demonstrating that the Clark/Robbins procedural bars were irregularly applied. (Docket No. 14.) Thus, Petitioner has not shifted the burden of proving the rule's inadequacy to Respondent. See Id.
Petitioner instead challenges the procedural bar by alleging that the claims in his petition demonstrate "cause and prejudice." (Docket No. 14 at 21.) A federal court may review the merits of a procedurally defaulted claim if the petitioner is able to "demonstrate cause for his state-court default" and "prejudice therefrom." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). A petitioner may show cause by demonstrating that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court, Murray v. Carrier, 477 U.S. 478, 488 (1986), or by establishing constitutionally ineffective assistance of counsel, McClesky, 499 U.S. at 494. However, the principles of the exhaustion doctrine require that a claim of ineffective assistance of counsel be fairly presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Murray, 477 U.S. at 489.
Petitioner does not seek relief under the "fundamental miscarriage of justice" exception to procedural default, which would require a showing of actual innocence. See McClesky v. Zant, 499 U.S. 467, 494 (1991).
In the instant case, Petitioner's claim of ineffective assistance of trial counsel was itself procedurally defaulted, and thus may not constitute cause. See Cockett v. Ray, 333 F.3d 938, 942 (9th Cir. 2003) (holding that a procedurally defaulted ineffective assistance of trial counsel claim could not constitute cause). Furthermore, because Petitioner failed to demonstrate cause, this Court does not address the issue of possible prejudice. See, e.g., Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982) (declining to consider the possibility of prejudice after determining that respondents lacked cause for their default). Accordingly, Petitioner's "cause and prejudice" challenge fails and thus his claims are procedurally defaulted.
IV. Conclusion
After thorough review of the record in this matter, and based upon both the statute of limitations and procedural default analyses, it is recommended that Respondent's Motion to Dismiss be GRANTED and the Petition for Writ of Habeas Corpus be DISMISSED WITH PREJUDICE. This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
Any party may file written objections with the Court and serve a copy on all parties on or before April 28, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed no later than ten days upon receipt of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.