(HC) Newbery v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Gustavo D. Newbery, No. 2:20-cv-2167-KJM-SCR 12 Petitioner, ORDER 13 v. 14 Patrick Covello, 1S Respondent. 16 17 This court previously granted petitioner Gustavo D. Newbery’s request to effectively 18 | reopen this closed federal habeas corpus action and respond to the magistrate judge’s findings and 19 | recommendations. See Prior Order (Jan. 5, 2024), ECF No. 24. The court advised petitioner that 20 | a failure to focus his objections on the issues raised in the magistrate judge’s findings and 21 | recommendations could result in dismissal of the petition. /d. at 4. Specifically, the court noted 22 | petitioner needed to explain why this petition was not time-barred under 28 U.S.C. § 2244(d). Id. 23 | Petitioner has now filed objections, see Obj., ECF No. 25, and no response was filed. 24 As the magistrate judge noted in the findings and recommendations, there is a one-year 25 | statute of limitations for filing a habeas petition in federal court. See 28 U.S.C. § 2244(d). Here, 26 | because the petition was filed ten months after the deadline, the petition is untimely under 27 | 28 US.C. § 2244(d) unless equitable tolling applies. See F&Rs at 3-4, ECF No. 18. “A habeas 28 | petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights

1 | diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely 2 | filing.” Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (internal marks and citation omitted). 3 | “This is a very high bar and 1s reserved for rare cases.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 4 | 1077 (9th Cir. 2014) (citation omitted). Petitioner has not demonstrated such circumstances apply 5 | inthis case. In his objections, petitioner only reiterates his ineffective assistance of counsel 6 | arguments. See generally Obj. Given this, the court finds petitioner is not entitled to equitable 7 | tolling in this action. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed September 22, 2021, are adopted in full; 10 2. Respondent’s motion to dismiss, ECF No. 15, is granted; 11 3. The petition is dismissed as untimely; and 12 4. The clerk of court is directed to close this case. 13 DATED: October 1, 2024.

15 M/ □□ 16 UNI STATES DISTRICT JUDGE

17 18 19 20 21 22 23 24 25 26 27 28