UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

EDGAR ZAVALA, SA CV 22-0882 DSF (PD)

Petitioner,

ORDER ACCEPTING REPORT

v. AND ADOPTING FINDINGS,

CONCLUSIONS, AND

CRAIG KOENIG, Warden, RECOMMENDATIONS OF Respondent. UNITED STATES

MAGISTRATE JUDGE AND

DENYING CERTIFICATE OF

APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Motion to Dismiss (“MTD”), the records on file, the Report and Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s Objections to the Report. The Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court acknowledges that the state habeas petition constructively filed November 22, 2020, and summarily denied December 9, 2020, was filed in the California Court of Appeal, not the California Supreme Court as stated in the Report. (Dkt. 22 at 3, 7; Dkt. 27 at 4; see also Dkt. 12 at 5 (MTD stating the petition was filed in the California Court of Appeal); Dkts. 13-18 through 13-20). This minor error does not affect the statutory-tolling analysis, however. The Report correctly concluded the state petition was properly filed and awarded Petitioner the full 17 days of tolling under 28 U.S.C. § 2244(d)(2) for the period it was pending from November 22, 2020, until December 9. (Dkt. 22 at 7). Accordingly, except this minor correction—state appellate court instead of state supreme court—the remainder of Petitioner’s Objections are overruled. The Court accepts the Report, except as stated above, and adopts it as its own findings and conclusions. Accordingly, the Motion to Dismiss is GRANTED and the Petition is DISMISSED with prejudice. Further, for the reasons stated in the Report, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2): Fed. R. App. P. 22(b); Miller-E] v. Cockrell, 537 U.S. 322, 336 (2008).

IT IS SO ORDERED.

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Date: May 9, 2023 Kodo. Ad. Te, “ate “. sc’ er United States District Judge