1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOAQUIN M. MARTINEZ, Case No.: 21-CV-2106 JLS (LR)

12 Petitioner, ORDER (1) ADOPTING REPORT 13 v. AND RECOMMENDATION; (2) GRANTING RESPONDENTS’ 14 KATHLEEN ALLISON, et al., MOTION TO DISMISS 15 Respondents. PETITIONER’S HABEAS CORPUS PETITION; (3) DENYING 16 PETITIONER’S MOTIONS TO 17 APPOINT COUNSEL; (4) DENYING PETITIONER’S MOTION FOR 18 EXTENSION OF TIME; AND 19 (5) DENYING PETITIONER A CERTIFICATE OF 20 APPEALABILITY 21 (ECF Nos. 17, 18, 19, 20, 23) 22

23 Presently before the Court is Petitioner Joaquin M. Martinez’s (“Petitioner”) Second 24 Amended Petition for Writ of Habeas Corpus (“SAP,” ECF No. 8), as well as Petitioner’s 25 Motion for Extension of Time (ECF No. 18) and two Motions to Appoint Counsel (ECF 26 Nos. 17, 19). Respondent Kathleen Allison (“Respondent”) filed a Motion to Dismiss the 27 Petition for Writ of Habeas Corpus (“MTD,” ECF No. 20), and Magistrate Judge Lupe 28 Rodriguez, Jr. issued a Report and Recommendation (“R&R,” ECF No. 23) advising the 1 Court to grant Respondent’s MTD, dismiss the SAP without leave to amend, and deny 2 Petitioner’s Motions for Appointment of Counsel and for Extension of Time. R&R at 17. 3 No Party filed objections to the R&R. Having considered the SAP, the Parties’ briefing, 4 Judge Rodriguez’s R&R, and the law, the Court ADOPTS Judge Rodriguez’s R&R in its 5 entirety, GRANTS Respondent’s MTD, DISMISSES the SAP, DENIES Petitioner’s 6 Motions for Appointment of Counsel, DENIES Petitioner’s Motion for Extension of Time, 7 and DENIES Petitioner a certificate of appealability (“COA”). 8 BACKGROUND 9 Judge Rodriguez’s R&R contains an accurate recitation of the relevant background 10 and evidence. See R&R at 2–4. This Order incorporates by reference the background as 11 set forth therein. 12 LEGAL STANDARD 13 Federal Rule of Civil Procedure 72(b) and

(b)(1) set forth a district 14 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 15 a de novo determination of those portions of the report or specified proposed findings or 16 recommendations to which objection is made,” and “may accept, reject, or modify, in 17 whole or in part, the findings or recommendations made by the magistrate judge.” 28

(b)(1); see also United States v. Raddatz,

, 673–76 (1980); United 19 States v. Remsing,

(9th Cir. 1989). However, in the absence of timely 20 objection, the Court “need only satisfy itself that there is no clear error on the face of the 21 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 22 note (citing Campbell v. U.S. Dist. Court,

(9th Cir. 1974)). 23 ANALYSIS 24 No party filed timely objections to the R&R. See R&R at 17 (providing that any 25 party may file objections on or before June 30, 2023). The Court therefore reviews the 26 R&R for clear error. 27 As to Respondent’s MTD, the R&R concludes that (1) Petitioner has not exhausted 28 his state court remedies, R&R at 6–7; (2) Petitioner did not timely file the petition for writ 1 of habeas corpus and is not entitled to a later triggering date for the statute of limitations 2 pursuant to

(d)(1),

at 7–10; (3) Petitioner is not entitled to statutory 3 tolling because he did not file any state habeas petitions,

; and (4) Petitioner is not 4 entitled to equitable tolling because he has not shown “severe mental impairment during 5 the filing period” and because Petitioner’s filing of a separate habeas petition in June 2013 6 “refutes any assertion that Petitioner was unable to file a federal petition until” he filed the 7 instant petition in 2022,

at 10–15. Consequently, the R&R recommends that “the 8 Petition be dismissed without further leave to amend, but without prejudice to bring a new 9 petition once Petitioner has exhausted his claims.”

. 10 As to Petitioner’s Motions for Appointment of Counsel, the R&R concludes that 11 Petitioner “has not demonstrated that exceptional circumstances exist such that he should 12 be appointed counsel at this juncture.”

at 16–17. Accordingly, the R&R recommends 13 that Petitioner’s Motions for Appointment of Counsel “be denied without prejudice to 14 Petitioner’s renewal of a motion for appointment of counsel demonstrating a basis upon 15 which appointment would be appropriate in the future.”

. 16 Finally, as to Petitioner’s Motion for Extension of Time, the R&R concludes that, 17 “[b]ecause the Court has . . . determined that Petitioner’s claims are unexhausted and 18 should be dismissed, any extensions of time that the Court may be able to recommend 19 would be futile.”

The R&R therefore recommends that Petitioner’s Motion for 20 Extension of Time be denied without prejudice.

21 The Court finds no clear error in the R&R. Accordingly, the Court ADOPTS the 22 R&R; GRANTS Respondent’s MTD; DISMISSES WITH PREJUDICE Petitioner’s 23 SAP, but without prejudice to bring a new petition after Petitioner has exhausted his claims; 24 DENIES WITHOUT PREJUDICE Plaintiff’s Motions to Appoint Counsel; and 25 DENIES WITHOUT PREJUDICE Plaintiff’s Motion for Extension of Time. 26 CERTIFICATE OF APPEALABILITY 27 The Court also is obliged to determine whether to issue a COA in this proceeding. 28 A COA is authorized “if the applicant has made a substantial showing of the denial of a 1 || constitutional right.”

(c)(2).. “Where a district court has rejected the 2 || constitutional claims on the merits, . . . [t]he petitioner must demonstrate that reasonable 3 || jurists would find the district court’s assessment of the constitutional claims debatable or 4 ||wrong.” Slack v. McDaniel,

(2000). When “the district court denies a 5 ||habeas petition on procedural grounds without reaching the prisoner’s underlying 6 || constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of 7 ||reason would find it debatable whether the petition states a valid claim of the denial of a 8 || constitutional right and that jurists of reason would find it debatable whether the district 9 || court was correct in its procedural ruling.” /d. 10 Because the Court finds that no reasonable jurist would find 1t debatable whether the 11 || Court was correct in its determination that Petitioner is not entitled to federal habeas corpus 12 ||relief, the questions presented by the Petition do not warrant further proceedings. 13 || Accordingly, the Court DENIES a COA. 14 CONCLUSION 15 In light of the foregoing, the Court ADOPTS the R&R (ECF No. 23); GRANTS 16 ||Respondent’s Motion to Dismiss (ECF No. 20); DISMISSES WITH PREJUDICE 17 || Petitioner’s SAP (ECF No. 8), but without prejudice to bring a new petition after Petitioner 18 ||has exhausted his claims; DENIES WITHOUT PREJUDICE Plaintiff's Motions to 19 || Appoint Counsel (ECF Nos. 17, 19); and DENIES WITHOUT PREJUDICE □□□□□□□□□□□ 20 || Motion for Extension of Time (ECF No. 18). The Court further DENIES a Certificate of 21 || Appealability. The Clerk of the Court SHALL ENTER Judgment dismissing the Second 22 || Amended Petition and SHALL CLOSE the file. 23 IT IS SO ORDERED. 24 lIDated: July 31, 2023 psi SL. ammaitln 25 on. Janis L. Sammartino %6 United States District Judge 27 28

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