1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IMMANUEL SHOTWELL, Case No. 2:24-cv-0318-JDP (P) 12 Petitioner, ORDER 13 v. DIRECTING THE CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS 14 PATRICK COVELLO, ACTION 15 Respondent. FINDINGS AND RECOMMENDATIONS 16 THAT THIS ACTION BE DISMISSED AS UNTIMELY 17 ECF No. 6 18 19 20 21 Petitioner, a state prisoner, brought this action under section 2254 and alleged several 22 claims related to a conviction that was finalized in 2019. ECF No. 1 at 1-2. In my screening 23 order, I explained to petitioner that his claims appeared to be time-barred. ECF No. 5. I gave him 24 an opportunity to amend, however, and to explain why this action should still proceed. He has 25 submitted an amended petition, ECF No. 6, that fails to make a compelling showing that he 26 should be allowed to proceed despite being past the statute of limitations. Accordingly, I now 27 recommend that the petition be dismissed. 28 1 The petition is before me for preliminary review under Rule 4 of the Rules Governing 2 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 3 the habeas petition and order a response to the petition unless it “plainly appears” that the 4 petitioner is not entitled to relief. See Valdez v. Montgomery,

(9th Cir. 2019); 5 Boyd v. Thompson,

(9th Cir. 1998). 6 As I explained in my previous screening order, petitioner brought claims related to this 7 underlying conviction in Shotwell v. Couello, No. 2:22-cv-02176-TLN-EFB. Those claims were 8 time-barred by the one-year statute of limitations contained in the Anti-Terrorism and Effective 9 Death Penalty Act (“AEDPA”).

at ECF Nos. 16 & 17. In his current petition, petitioner does 10 not appear to argue that his claims are timely; instead, he argues that his claims should still 11 proceed because the state courts’ adverse decisions were contrary to clearly established federal 12 law. ECF No. 6 at 7. All federal habeas petitioners necessarily allege that the state court 13 decisions underlying or upholding their convictions are violative of federal law, otherwise their 14 petitions would be nonstarters. AEDPA’s statute of limitations would be meaningless if it did not 15 apply to petitions so alleging. Thus, it appears that petitioner’s claims are time-barred, and I now 16 recommend that the petition be dismissed. 17 It is hereby ORDERED that the Clerk of Court is directed to assign a district judge to this 18 action. 19 Further, it is RECOMMENDED that the amended petition, ECF No. 6, be DISMISSED as 20 time-barred and the Clerk of Court be directed to close this action. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be served and filed within fourteen days after service of the objections. The 27 parties are advised that failure to file objections within the specified time may waive the right to 28 1 appeal the District Court’s order. Turner v. Duncan,

(9th Cir. 1998); Martinez 2 | v. Yist,

(9th Cir. 1991). 3 4 IT IS SO ORDERED.

Dated: _ November 14, 2024 Q_——. 6 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28