(HC) Newbery v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO D. NEWBERY, No. 2:20-cv-2167 KJM DB 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner alleges he is entitled to relief because his trial counsel was 19 ineffective in violation of his rights under the Sixth Amendment. The matter was referred to a 20 United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On September 22, 2021, [9/23/21] the magistrate judge filed findings and 22 recommendations, which were served on all parties and which contained notice to all parties that 23 any objections to the findings and recommendations were to be filed within fourteen days. (ECF 24 No. 18.) 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, 26 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 27 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (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. The court writes separately to add a citation 3 || to Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) to support the finding that petitioner’s 4 | conviction became final sixty days after he was sentenced and to note that Lewis v. Mitchell, 5 || 173 F. Supp. 2d 1057 is a 2001 decision from the United States District Court for the Central 6 || District of California. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The findings and recommendations filed September 22, 2021, are adopted in full; 9 2. Respondent’s motion to dismiss (ECF No. 15) is granted; 10 3. The petition is dismissed as untimely; and 11 4. The clerk of court is directed to close this case. 12 | DATED: May 23, 2022. 13 14 ee 3 CHIEF ED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28