1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 Aylwin Dwayne Johnson, Jr., No. 2:24-cv-0562 KJM CKD P 13 Petitioner, 14 v. ORDER 15 Rob St. Andre, 16 Respondent. 17 18 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus under

. The matter was referred to a United States Magistrate Judge as 20 provided by

(b)(1)(B) and Local Rule 302. 21 On December 20, 2024, the magistrate judge filed findings and recommendations, 22 which were served on petitioner and which contained notice to petitioner that any objections to 23 the findings and recommendations were to be filed within fourteen days. See F & Rs, ECF No. 24 26. Neither party has filed objections to the findings and recommendations. 25 The court presumes that any findings of fact are correct. See Orand v. United States, 26

(9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 27 de novo. See Robbins v. Carey,

(9th Cir. 2007) (“[D]eterminations of law 28 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 1 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis. 3 The court agrees with the magistrate judge’s recommendation that petitioner’s habeas 4 petition should be dismissed based on Gerlaugh v. Stewart,

(9th Cir. 1997). 5 See F&Rs at 1. The court also agrees with the magistrate judge’s recommendation and the 6 government’s reply brief, see Reply at 5–9, ECF No. 24, that petitioner’s habeas petition is not 7 entitled to equitable tolling, see F&Rs at 3–4. The magistrate judge found there had not been any 8 specific evidence provided to support petitioner’s claims the Covid-19 pandemic was an 9 extraordinary circumstance that hampered petitioner’s ability to timely file his habeas petition. 10 F&Rs at 4; see Frye v. Hickman,

(9th Cir. 2001) (lack of library access on 11 its own was not automatic grounds for equitable tolling). Furthermore, petitioner’s statutory 12 tolling period ran in the time period outside of the Covid-19 pandemic. See F&Rs at 3-4; Smith v. 13 Davis,

(9th Cir. 2020) (en banc) (holding petitioners must show reasonable 14 diligence “not only while an impediment to filing caused by an extraordinary circumstance 15 existed, but before and after as well, up to the time of filing his claim in federal court”). Because 16 petitioner’s habeas petition was not filed during the otherwise applicable statutory tolling period, 17 the court finds the petition is untimely. See

(d)(1)(A) (state prisoners 18 challenging their custody have one year to file a federal petition from the date on which the 19 judgment became final by the conclusion of direct review, or the expiration of the time for 20 seeking such review). 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The findings and recommendations (ECF No. 26) are adopted in full; 23 2. Respondent’s motion to dismiss (ECF No. 10) is granted; 24 3. Petitioner’s petition for a writ of habeas corpus is dismissed; 25 4. The Clerk of Court shall close this action; and 26 5. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 27 § 2253. 28 This resolves ECF Nos. 10, 26. 1 IT IS SO ORDERED. 2 | DATED: February 19, 2025.

4 =e Le ; STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28