Case 5:21-cv-01213-FWS-ADS Document 18 Filed 09/29/22 Page 1 of 5 Page ID #:347

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JOSE PEREZ RODRIGUEZ, Case No. 5:21-01213 FWS (ADS)

12 Petitioner,

13 v. ORDER ACCEPTING UNITED STATES

MAGISTRATE JUDGE’S REPORT AND

14 GIGI MATTESON, RECOMMENDATION

15 Respondent.

16 17 Before the Court is a Petition for Writ of Habeas Corpus by a Person in State 18 Custody (Dkt. 1) (“Petition”) filed by Petitioner Jose Perez Rodriguez (“Petitioner”). 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, Respondent’s Motion 20 to Dismiss (Dkt. 8), Petitioner’s Oppositions to the Report and Recommendation and 21 Motion to Dismiss (Dkts. 13, 14, 16), the Final Report and Recommendation of the 22 United States Magistrate Judge (Dkt. 17), and all the records and files therein. 23 /// 24 Case 5:21-cv-01213-FWS-ADS Document 18 Filed 09/29/22 Page 2 of 5 Page ID #:348

1 “A judge of the court may accept, reject, or modify, in whole or in part, the 2 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “A 3 judge of the court shall make a de novo determination of those portions of the report or 4 specified proposed findings or recommendations to which objection is made.” Id.; see 5 also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must determine de novo any 6 part of the magistrate judge’s disposition that has been properly objected to,” and “[t]he

7 district judge may accept, reject, or modify the recommended disposition; receive 8 further evidence; or return the matter to the magistrate judge with instructions.”). 9 Proper objections require “specific written objections to the proposed findings and 10 recommendations” of the magistrate judge. Fed. R. Civ. P. 72(b)(2). Where no 11 objection has been made, arguments challenging a finding are deemed waived. See 28 12 U.S.C. § 636(b)(1) (“Within fourteen days after being served with a copy, any party may 13 serve and file written objections to such proposed findings and recommendations as 14 provided by rules of court.”). 15 The Final Report and Recommendation has a somewhat unusual procedural 16 background. On August 4, 2022, after the Magistrate Judge issued the Report and 17 Recommendation on the unopposed Motion to Dismiss but during the objections 18 period, Petitioner filed an Opposition to the Motion to Dismiss and stated that he never

19 received the Motion to Dismiss. (Dkt. 13.) In a separate but related filing, Petitioner 20 requested 30 days to brief an equitable tolling argument. (Dkt. 14.) The Magistrate 21 Judge granted Petitioner the opportunity to respond to the Motion to Dismiss by August 22 29, 2022, and gave Respondent an opportunity to reply. (Dkt. 15.) On August 25, 23 2022, Petitioner filed an Opposition. (Dkt. 16.) Respondent did not file a Reply. (See 24 generally Dkt.) Although Petitioner filed Oppositions to the Report and

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1 Recommendation and Motion to Dismiss (Dkts. 13, 14, 16), the court observes no 2 objections were filed. (See generally Dkt.) 3 In the Opposition filed on August 25, 2022, Petitioner argues that the Petition is 4 timely because equitable tolling applies. (Dkt. 16.) Petitioner contends he was 5 transferred to federal custody for approximately 15 months beginning on June 28, 2018, 6 and was not allowed to take his legal documents with him. (Id. at 2-3.) Petitioner also

7 alleges that once he was transferred to state custody, the Covid-19 pandemic caused the 8 prison to go into lockdown, thus depriving him from access to the law library. (Id. at 3.) 9 He attaches exhibits related to his outgoing legal mail history, correspondence from the 10 U.S. Department of Justice notifying him of his February 19, 2021 release, and public 11 inmate data. (Id. at 5-12.) 12 The Court finds that Petitioner failed to adequately demonstrate that equitable 13 tolling applies. Equitable tolling applies when a petitioner shows both: “(1) that he has 14 been pursuing his claims diligently, and (2) that some extraordinary circumstance stood 15 in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). 16 Petitioner “bears the burden of showing that equitable tolling is appropriate” and that 17 analysis is “highly fact-dependent.” Espinoza-Matthews v. California, 432 F.3d 1021, 18 1026 (9th Cir. 2005) (footnote and citations omitted).

19 Here, the Court concludes Petitioner provides insufficient supporting facts, 20 details, evidence, or declarations to substantiate his equitable tolling arguments. Cf. 21 Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002) (noting that petitioner provided a 22 copy of the prison transfer log and an affidavit by an inmate worker to support his 23 allegation that he was transferred to a different prison and deprived access to legal 24 materials). Petitioner does not adequately specify which particular legal materials he

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1 was deprived of during his federal custody. The exhibits attached to Petitioner’s 2 Opposition also do not sufficiently substantiate his assertions that he was transferred to 3 federal custody and deprived access of his legal materials or elaborate on his allegation 4 regarding the lack of access to the law library. 5 In his Opposition, Petitioner cites to Waldron-Ramsey v. Pacholke, 556 F.3d 6 1008, 1011 (9th Cir. 2009). In Waldron-Ramsey, the Ninth Circuit held that equitable

7 tolling did not apply because the plaintiff was uncooperative because he refused to sign 8 the release of his legal materials or consolidate his legal materials into the boxes that he 9 was allowed. Id. at 1013. Thus, the Ninth Circuit determined that the plaintiff did not 10 meet his burden of demonstrating that he exercised due diligence in filing his petition. 11 Id. at 1014. Similarly, here, Petitioner has not adequately established that he pursued 12 his claims diligently. See Holland, 560 U.S. at 649. Nowhere in the Opposition does 13 Petitioner state that he requested his legal materials while in federal custody, nor does 14 he explain what materials he needed and why. As such, Petitioner has not sufficiently 15 established that he acted with diligence in requesting his legal materials and filing his 16 petition. Compare Knox v. Soto, 2016 WL 3679299, at *8 (C.D. Cal. May 6, 2016) 17 (finding equitable tolling did not apply when petitioner did not request access to legal 18 files), report and recommendation adopted by 2016 WL 3659168 (C.D. Cal. July 7,

19 2016), aff’d sub nom. Knox v. Asuncion, 753 F. App’x 432 (9th Cir. 2019) with 20 Espinoza-Matthews, 432 F.3d at 1027 (finding equitable tolling applied when petitioner 21 requested his legal property four times). Accordingly, Petitioner has not adequately 22 established that he is entitled to equitable tolling, and thus the Petition is untimely. 23 24

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1 Based on the state of the record, as applied to the applicable law, the Court 2 || adopts the Final Report and Recommendation, including each of the findings of fact and 3 || conclusions of law therein. 4 IT THEREFORE IS ORDERED that: 5 1. The Court accepts the findings and recommendations of the Magistrate Judge 6 (Dkt. 17); 7 2. Respondent’s Motion to Dismiss (Dkt. 8) is granted and this case is dismissed 8 with prejudice; and 9 3. Judgment is to be entered accordingly. 10 11 || DATED: September 29, 2022 ZL Suh LS few te HONORABLE FRED W. SLAUGHTER 13 UNITED STATES DISTRICT JUDGE

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