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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LIONELL THOLMER, 

Petitioner, No. CIV S-04-2491 FCD PAN P

vs.

C. M. HARRISON, 

Respondent. ORDER

 /

Petitioner, a state prisoner proceeding pro se, has filed this application for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On November 23, 2005, the magistrate judge filed findings and recommendations

herein which were served on all parties and which contained notice to all parties that any

objections to the findings and recommendations were to be filed within twenty days. Petitioner

has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-

304, this court has conducted a de novo review of this case. Having carefully reviewed the entire

file, the court finds the findings and recommendations to be supported, in part, by the record and

by proper analysis. The Court finds that petitioner has raised factual arguments relating to the

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equitable tolling of his juror misconduct claims in his objections to the Magistrate Judge’s

Findings and Recommendations. Specifically, petitioner asserts that he filed his petition in the

Superior Court of Yolo County within eleven days of the discovery of the Smyth Juror

Misconduct Report, which is the factual predicate for his juror misconduct claim. Petitioner also

asserts that within the intervening period between the filing of his petition in state court and the

filing of his petition in federal court, the Yolo County Superior Court, the California Court of

Appeals, Third Appellate District, and the California Supreme Court reviewed and subsequently

denied the petition. According to petitioner, this state review process occurred between May

2002 and October 2004. Petitioner argues that, at most, 178 days passed between the filings in

the state courts after the discovery of the Smyth Juror Misconduct Report. Because petitioner has

raised potentially valid arguments in support of the applicability equitable tolling, respondent’s

motion to dismiss for untimeliness as to this claim cannot be granted at this juncture.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed November 23, 2005, are adopted in

part. 

2. Respondent’s June 30, 2005, motion to dismiss is granted except as to

petitioner’s claim of juror misconduct based on “newly discovered evidence,” viz., the “Smyth

Confidential Memorandum.” 

3. Within 30 days, respondent shall further respond to the sole remaining claim in

the petition by filing and serving an answer or a motion to dismiss. A motion to dismiss on

untimeliness grounds should address petitioner’s contentions in his January 13, 2006, findings

and recommendations that he deserves tolling based on state habeas petitions pending from May

2002 to October 2004.

DATED:March 9, 2006

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL JR.

United States District Judge

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