(HC)Harris v. Moore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL J. HARRIS, No. 1:22-cv-00601-ADA-CDB

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING THE 13 v. PETITION WITH PREJUDICE AND DIRECTING THE CLERK OF COURT TO 14 SEAN MOORE, CLOSE THE CASE

15 Respondent. (ECF No. 20)

17 Petitioner Daniel J. Harris (“Petitioner”) proceeds pro se and in forma pauperis in this 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF Nos. 1, 3.) This matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 On April 25, 2023, the assigned Magistrate Judge issued findings and recommendations to 22 dismiss Petitioner’s petition for writ of habeas corpus as untimely. (ECF No. 20.) The Court served 23 the findings and recommendations on Petitioner and gave him fourteen days to file objections 24 thereto. (Id. at 4-5.) On May 4, 2023, Petitioner filed objections. (ECF No. 21.) 25 In his objections, Petitioner reiterates that his untimely filing was due to his attorney’s 26 “abandonment and negligence,” but he otherwise does not challenge the Magistrate Judge’s 27 analysis of the untimeliness of Petitioner’s filing or the fact that equitable tolling does not apply. (Id. at 1.) Only egregious conduct by an attorney may be grounds for equitable tolling. See Spitsyn 1 | v. Moore, 345 F.3d 796, 799-800 (9th Cir. 2003) (“The cases in which we have . . . concluded that 2 || equitable tolling of the limitations period under ADEPA for filing a habeas petition is appropriate 3 || have not involved attorney misconduct.”) Petitioner has failed to bear the burden of showing that 4 | his attorney’s actions were sufficiently extraordinary to warrant equitable tolling. See Frye v. 5 || Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (“[M]iscalculation of the limitations period □ □ . and 6 || negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable 7 | tolling.”) Therefore, Petitioner’s objections are unpersuasive. 8 According to 28 U.S.C. § 636(b)(1)(C©), this Court has conducted a de novo review of this 9 | case. Having carefully reviewed the entire file, the Court concludes the findings and 10 || recommendations are supported by the record and by proper analysis. 11 Accordingly, 12 1. The findings and recommendations issued on April 25, 2023, (ECF No. 20), are adopted 13 in full; 14 2. Petitioner’s petition for writ of habeas corpus, (ECF No. 1), is DISMISSED with 15 prejudice; and 16 3. The Clerk of Court is directed to close this case. 17 18 19 IT IS SO ORDERED. 20 Dated: _ August 8, 2023 21 UNITED f$TATES DISTRICT JUDGE 22 23 24 25 26 27 28