Opinion
Case No. LA CV 16-9564 SJO (JCG)
02-09-2017
HUMBERTO FABIAN PEREZ, Petitioner, v. DANIEL PARAMO, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the Magistrate Judge's Report and Recommendation ("R&R"), [Dkt. No. 5], Petitioner's Objections to the Report and Recommendation ("Objections"), [Dkt. No. 6], and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the same arguments made in the Petition, and lack merit for the reasons set forth in the R&R. There is one issue however, that warrants brief discussion here. //
In his Objections, Petitioner appears to argue that he should be entitled to equitable tolling. (Objections at 3 ("[T]he NINTH CIRCUIT has recognized[] equitable tolling will be justified in few cases.").)
As a rule, however, equitable tolling is appropriate when a petitioner establishes that he "has been pursuing his rights diligently", and "extraordinary circumstances" beyond the petitioner's control made it impossible to file a petition on time. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (internal quotation marks and citation omitted); see also Miranda v. Castro, 292 F.3d 1063, 1065, 1066 (9th Cir. 2002) ("[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.") (citation omitted).
Here, Petitioner falls far short of this high threshold, as there is nothing in the Petition to indicate that there was any "extraordinary circumstance" that prevented Petitioner from filing a timely habeas petition. // // // // //
Furthermore, Petitioner's attempts to address the merits of his claims are futile, as the R&R was based on the untimeliness of the Petition. (See Objections at 2-3); see also Williams v. Beard, 2015 WL 7308656, at *1 n.1 (S.D. Cal. Nov. 19, 2015) ("Petitioner's Objections include arguments addressing the merits of the Petition. Because the . . . Report and Recommendation [is] based on untimeliness[,] the Court does not address the merits arguments."). --------
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, the Court declines to issue a certificate of appealability. DATED: February 9, 2017
/s/_________
HON. S. JAMES OTERO
UNITED STATES DISTRICT JUDGE