1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICHARD ALAN NOLAN, Case No. 8:18-cv-00847-FMO-MAA 12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 CHARLES W. CALLAHAN, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation of the United States 19 Magistrate Judge. 20 The Court also has reviewed Petitioner’s objections to the Report and 21 Recommendation, which the Court received and filed on March 25, 2020 22 (“Objections”). (Objs., ECF No. 41.) Respondent did not file a timely response to 23 the Objections. As required by Federal Rule of Civil Procedure 72(b)(3), the Court 24 has engaged in de novo review of the portions of the Report and Recommendation 25 to which Petitioner specifically has objected. 26 Petitioner argues in the Objections that the Magistrate Judge erred in her 27 analysis that the state court’s application of California’s timeliness bar was not 28 clearly untenable. (Objs., at 6–8.) Petitioner offers arguments why the state court’s 1 application of the timeliness bar was erroneous. (Id., at 3–5.) The Court has 2 conducted an independent review of the state court’s decision applying the 3 timeliness bar to Petitioner’s state-court habeas petition. (Lodged Document No. 4 29, ECF No. 38-29.) The Court concurs with the Magistrate Judge’s conclusion 5 that the state court’s interpretation is not a “clearly untenable” decision that 6 “amounts to a subterfuge to avoid federal review,” Lopez v. Schriro, 491 F.3d 1029, 7 1043 (9th Cir. 2007) (citation and quotation marks omitted), or that this is one of 8 those “unusual” circumstances in which a federal court should “reject a state court’s 9 use of a procedural bar on the ground that it was erroneously applied,” Sivak v. 10 Hardison, 658 F.3d 898, 907 (9th Cir. 2011). “A California court’s determination 11 that a filing was untimely . . . is dispositive.” Banjo v. Ayers, 614 F.3d 964, 968 12 (9th Cir. 2010). The state court was unequivocal in rejecting the petition in its 13 entirety as untimely, and because “there are ways to construe the state court’s ruling 14 that would not make it ‘clearly untenable,’” the Court declines to find that the state 15 court erroneously applied its own procedural rule. Lopez, 491 F.3d at 1043; cf. 16 Carey v. Saffold, 536 U.S. 214, 226 (2002) (“If the California Supreme Court had 17 clearly ruled that [the petitioner’s] 4 1/2-month delay was ‘unreasonable,’ that 18 would be the end of the matter . . . .”). 19 Consequently, the Court also rejects Petitioner’s other objection to the Report 20 and Recommendation, that he has demonstrated he should be excused from default 21 on the basis that he was denied ineffective assistance of counsel. (Objs., at 8.) 22 Because Petitioner’s claims of ineffective assistance themselves are procedurally 23 defaulted, they may not serve as a basis upon which to establish cause for a default. 24 See Edwards v. Carpenter, 529 U.S. 446, 453 (2000). 25 The Court concurs with and accepts the findings, conclusions, and 26 recommendations of the United States Magistrate Judge, and overrules the 27 Objections. 28 /// 1 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 2 the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 3 Petition and dismissing this action with prejudice. 4 5 DATED: June 15, 2020 6 _________/s/________________________

FERNANDO M. OLGUIN

7

UNITED STATES DISTRICT JUDGE

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