Kelley v. Ducharme

18 F. App'x 527

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2001
• Docket: No. 00-35132; D.C. No. CV-99-05291-FDB
• Status: Published

Opinion

MEMORANDUM

**

Washington state prisoner Ned L. Kelley appeals pro se the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-barred under 28 U.S.C. § 2244(d). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s dismissal of a habeas petition on statute of limitations grounds, Herbst v. Cook, 260 F.3d 1039, -, -(9th Cir.2001), and we affirm.

In Herbst, we concluded that a district court may dismiss sua sponte a habeas petition on statute of limitations grounds so long as the court provides the petitioner adequate notice of its intent to dismiss and an opportunity to respond. Id. at -. Here, Kelley was provided adequate notice by the magistrate’s order to show cause and its report and recommendation, which both recommended dismissal under § 2244(d), and an opportunity to respond through the filing of a response to the order to show cause and objections to the report and recommendation. Therefore the district court’s dismissal of Kelley’s petition was within its authority. Id.

AFFIRMED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.

1 . All outstanding motions are denied as moot.