Opinion
Case No. 3:08cv121/RV/EMT.
October 21, 2008
ORDER
This cause comes on for consideration upon the magistrate judge's report and recommendation dated September 29, 2008 (Doc. 14). The parties have been furnished a copy of the report and recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of all timely filed objections.
Having considered the report and recommendation, and the timely filed objection thereto (Doc. 15), I have determined that the report and recommendation should be adopted. The magistrate judge recognized that tolling of the federal limitations period requires a "properly filed" application. The state court made an "unambiguous finding" that petitioner's state post-conviction motion was untimely. It considered the newly discovered evidence and manifest injustice exceptions, and found that they failed. Thus, there was no tolling.
Accordingly, it is now ORDERED as follows:
1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.
2. Respondent's motion to dismiss (Doc. 9) is GRANTED.
3. The petition for writ of habeas corpus (Doc. 1) is DISMISSED with prejudice as untimely.