REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner, represented by counsel, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 21, 2013, accompanied by "Petitioner's Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus" ("Pet. Mem."), a "Compendium of Exhibits in Support of Petition for Habeas Corpus, etc." ("COE"), and declarations. Respondent filed an Answer on March 25, 2013, asserting that the Petition is untimely and unexhausted. Petitioner filed a Reply on April 8, 2013.

BACKGROUND

On January 30, 2009, in the Los Angeles County Superior Court, Petitioner entered a plea of no contest to driving under the influence causing bodily injury in violation of California Vehicle Code section 23153(a) and driving with a .08 percent blood alcohol level causing bodily injury in violation of California Vehicle Code section 23153(b) (COE, pp. 005-006, 036, 052). Petitioner admitted that in the commission of the offenses he personally inflicted great bodily injury within the meaning of California Penal Code section 12022.7(a) (COE, pp. 006, 052-053). The court indicated that it would impose and suspend execution of a six-year prison sentence, and impose a five-year probation term conditioned upon payment of restitution and service of one year in the county jail and one year in a residential alcohol treatment program (COE, pp. 006, 035-044). The court allowed Petitioner to remain free on bond for thirty days pending sentencing, but cautioned Petitioner that if Petitioner drank alcohol or drove in the interim Petitioner would "ruin the entire agreement" (COE, pp. 006, 054-055). Petitioner said he understood (COE, p. 055).

At the scheduled February 20, 2009 sentencing hearing, Petitioner did not appear, and the court issued a bench warrant (COE, pp. 006-007, 064). Apprehended in Texas and extradited therefrom, Petitioner appeared for sentencing on March 25, 2009 (COE, pp. 069-070). According to a declaration Petitioner filed in the Superior Court on March 24, 2009, Petitioner had fled because he had been suffering from a "panic attack and [was] scared for [his] life" (COE, pp. 064-065). At the sentencing hearing, the prosecutor said that the Texas state trooper who arrested Petitioner reported to the prosecutor that the trooper had stopped Petitioner for driving too fast and that a search of the car had revealed drug paraphernalia and black tar heroin (COE, p. 071). Petitioner addressed the court on March 25, 2009, but did not deny these allegations (COE, p. 075-077). The court sentenced Petitioner to six years in state prison (COE, pp. 007-008, 078-079).

Thereafter, Petitioner's counsel told the court that Petitioner had a right to appeal the sentence and that the court should advise Petitioner of his appellate rights (COE, p. 081). The court said Petitioner would have to file a certificate of probable cause (COE, p. 081). Petitioner's counsel initially disagreed, and asked: "He doesn't need to be informed of his right to be appealed [sic]?" COE, p. 081). The court responded: "Not after 2013 it's treated the same as a guilty plea even though he's sentenced after a Cruz waiver (COE, p. 081).1 Petitioner's counsel said: "Do we have a Cruz waiver?" (COE, p. 081). The court responded: "Yes. You played a significant role in that, in the Cruz waiver, in explaining to your client the consequences of not coming to court." (COE, p. 081-082). Petitioner's counsel asked for a copy of the transcript, saying Petitioner was indigent (COE, p. 082). The court asked if Petitioner's counsel was still representing Petitioner, to which counsel replied: "I'm not going to represent him on appeal, but I think he has to understand his rights vis-a-vis the certificate of probable cause, if you're correct, and I believe you are, and I think the transcript would be helpful in explaining what occurred." (COE, p. 082). The court said that if counsel provided a declaration regarding Petitioner's alleged indigence, the court would provide a transcript (COE, pp. 082-083).

Petitioner did not appeal (see Petition, p. 2). On May 15, 2009, Petitioner's counsel filed a "Motion to Reconsider Sentence" in the Superior Court (COE, pp. 087-100). The Superior Court denied the motion at a hearing on June 2, 2009 (COE, pp. 105-06).

On June 24, 2009, Petitioner's wife retained attorney Sara Azari to evaluate possible grounds for post-conviction relief for Petitioner (COE, pp. 123-24; Declaration of Kris Montione, ¶ 3). On August 25, 2009, Ms. Azari emailed Petitioner's wife suggesting the filing of a habeas petition and estimating the fees for that service (COE, pp. 127-28). Petitioner and his wife allegedly did not have the money to hire Ms. Azari, so they assertedly continued to look for "both public and private representation" (Declaration of Kris Montione, ¶ 4).

Petitioner evidently then contacted the Los Angeles office of the California Appellate Project ("CAP") (COE, pp. 129-30). On September 16, 2009, and again on September 30, 2009, a CAP attorney wrote letters to Petitioner (COE, pp. 129-32). Each letter stated that the time limit for an appeal had passed (id.). On October 15, 2009, the CAP attorney wrote another letter to Petitioner, advising him that CAP would not help him further (COE, pp. 134-35). In or about October 2009, Petitioner wrote a letter to the Superior Court clerk, requesting information regarding the filing of a habeas corpus petition, but the court reportedly returned the letter to Petitioner (COE, p. 133; Pet. Mem., p. 8).

On December 9, 2009, Petitioner submitted an inmate administrative appeal challenging the calculation of his credits (COE, pp. 138-39). Petitioner appealed this matter to the Director's Level, which denied the appeal in an undated opinion (COE, pp. 141-42).

Petitioner then wrote a letter to CAP's Sacramento office, which wrote back to Petitioner on March 10, 2010, stating that the letter had been forwarded to CAP's Los Angeles office (COE, p. 143). On March 30, 2010, the Los Angeles CAP attorney wrote to Petitioner, again stating (as she had stated in October of 2009) that CAP would not assist Petitioner further (COE, pp. 144-45).

Also on March 30, 2010, Petitioner filed a pro se "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc.," bearing a signature date of March 25, 2010 (COE, pp. 146-54). The Superior Court denied the motion summarily on April 1, 2010 (COE, p. 154).

In May of 2010, Petitioner allegedly spoke to attorney Jeffrey S. Vallens, who assertedly agreed to assist Petitioner in seeking post-conviction relief (COE, pp. 155). On June 10, 2010, Petitioner entered into a retainer agreement with Mr. Vallens (COE, pp. 156-58). Petitioner alleges that it was not until late September of 2010 that he and his wife could obtain the funds necessary to proceed with private representation (Pet. Mem., p. 9).

On November 24, 2010, Petitioner, represented by his present counsel (not Mr. Vallens), filed a habeas corpus petition in the Superior Court (Respondent's Lodgment 1). The Superior Court denied the petition on December 2, 2010 (COE, pp. 159-60).

On January 21, 2011, Petitioner, represented by his present counsel, filed a habeas corpus petition in the California Court of Appeal (Respondent's Lodgment 2). The Court of Appeal denied the petition on January 27, 2011 (COE, p. 161; Respondent's Lodgment 2).

On May 9, 2011, Petitioner, represented by his present counsel, filed a habeas corpus petition in the California Supreme Court (Respondent's Lodgment 3). The California Supreme Court denied the petition on February 22, 2012 (COE, pp. 162-63).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The sentencing court erred by allegedly failing to advise Petitioner of his appellate rights; and

2. Petitioner's counsel rendered ineffective assistance, by assertedly: (a) failing to file a declaration of indigency and a notice of appeal in order to perfect an appeal; (b) failing to prepare for trial and to appear for trial, allegedly resulting in the issuance of a bench warrant for Petitioner; and (c) pressuring Petitioner to accept a plea bargain.

DISCUSSION

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

"AEDPA's one-year statute of limitations in § 2244(d)(1) applies to each claim in a habeas application on an individual basis." Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012).

Because Petitioner did not appeal, his conviction would have become final on May 24, 2009, sixty days from the date of sentencing, had that day not been a Sunday. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal.App.3d 1124, 1127 n.2, 253 Cal.Rptr. 910 (1988); Cal. Ct. R. 8.308(a). However, because May 24, 2009, was a Sunday, Petitioner's conviction became final the next day, May 25, 2009. See Cal. Code Civ. Proc. §§ 12a, 135; Cal. Gov't Code § 6700(a). Therefore, the statute of limitations commenced running on May 26, 2009, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A).

Subsection B of section 2244(d)(1) is inapplicable. No illegal conduct by the state or those acting for the state "made it impossible for [Petitioner] to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teague v. Lane, 489 U.S. 288 (1989), to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

Under section 2244(d)(1)(D), the "`due diligence' clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.), cert. denied, 133 S.Ct. 769 (2012); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Petitioner participated in the change of plea proceeding and the sentencing hearing. Thus, Petitioner plainly knew or should have known at the time of sentencing the "vital facts" underlying his claims that the sentencing court assertedly failed to advise Petitioner of his appellate rights and counsel assertedly failed to prepare for and appear at trial and allegedly pressured Petitioner to accept a plea bargain. Therefore, those claims accrued on May 26, 2009.

With respect to Petitioner's claim that trial counsel allegedly failed to perfect an appeal, it is not entirely clear precisely when Petitioner learned that his counsel had failed to do so. Although Petitioner knew at the time of sentencing that counsel said he did not intend to represent Petitioner on appeal, counsel did file a "Motion to Reconsider Sentence" within the 60-day period to appeal. Ms. Azari's letter to Petitioner dated August 5, 2009, indicated that no notice of appeal had been filed, that the deadline for doing so had passed, and that Ms. Azari was waiting for transcripts (COE, pp. 125-26). In Ms. Azari's email to Petitioner's wife, dated August 25, 2009, Ms. Azari again stated that Petitioner's counsel had not filed an appeal (COE, pp. 127-28). At least by August 25, 2009, therefore, Petitioner knew or should have known that his trial counsel had not perfected an appeal. See Ford v. Gonzalez, 683 F.3d at 1235-36 (access by petitioner's wife to information concerning the factual predicates for petitioner's claim proves petitioner reasonably could have discovered the factual predicates, where petitioner's wife actively participated in petitioner's case).2

Accordingly, Petitioner's claims that the sentencing court assertedly failed to advise Petitioner of his appellate rights and counsel assertedly failed to prepare for and appear at trial and allegedly pressured Petitioner to accept a plea bargain all accrued on May 26, 2009. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Petitioner's claim that counsel failed to perfect an appeal accrued no later than August 25, 2009. Petitioner filed the present Petition on February 21, 2013, over two years later than either date.3 Therefore, absent sufficient tolling, the Petition is untimely. As discussed below, available tolling is not sufficient to rescue any of Petitioner's claims from the bar of limitations.

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." The Court assumes arguendo that statutory tolling began on May 15, 2009, (prior to the dates of accrual), when Petitioner's counsel filed the "Motion to Reconsider Sentence" in the Superior Court. The Court also assumes arguendo that statutory tolling continued through June 2, 2009, when the court denied the motion. Petitioner next constructively filed his pro se "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc." on March 25, 2010. The Court also assumes arguendo that Petitioner is entitled to statutory tolling during the pendency of this motion, from March 25, 2010, through April 1, 2010.

In certain circumstances, a habeas petitioner may be entitled to "gap tolling" between the denial of a state habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 536 U.S. 214, 219-221 (2002). However, for the following reasons, Petitioner is not entitled to gap tolling between the date the Superior Court denied his "Motion to Reconsider Sentence" and the date Petitioner constructively filed his "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc."

Statutory tolling continues only through "one full round" of state habeas petitions. See Carey v. Saffold, 536 U.S. at 222; Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010); Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). Statutory tolling does not apply where a petitioner files a subsequent petition in the same court, unless the subsequent petition constitutes an attempt to correct deficiencies in the previous petition. See Stancle v. Clay, 692 F.3d 948, 953 (9th Cir. 2012), cert. denied, 133 S.Ct. 1465 (2013). Petitioner's "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc." did not constitute such an attempt, but instead raised entirely different issues.4 Therefore, the latter motion was not part of "one full round" of state post-conviction review.

Moreover, an untimely state application for post-conviction relief is not a "properly filed" application for purposes of statutory tolling under section 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is `pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted). Where, as here, a state court denies a collateral application without a "clear indication" that the application was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, 131 S.Ct. 3023 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).

In California, a collateral application is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of the delay. Evans v. Chavis, 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting, . . . [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay `reasonable.'" Id. at 201. Here, Petitioner filed his "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc." over nine months after the Superior Court denied the "Motion to Reconsider Sentence," a delay which far exceeds the delay deemed unreasonable in Evans v. Chavis. Furthermore, the Ninth Circuit has held to be unreasonable gaps much shorter than the gap in the present case. See Stancle v. Clay, 692 F.3d at 956 (unjustified delay of 82 days unreasonable); Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir.), cert. denied, 132 S.Ct. 554 (2011) (unjustified gaps of 91 and 81 days unreasonable); Banjo v. Ayers, 614 F.3d at 970 (unexplained gap of 146 days unreasonable); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (unjustified gaps of 115 and 101 days unreasonable). In accordance with these authorities, Petitioner is not entitled to gap tolling between the Superior Court's denial of the "Motion to Reconsider Sentence" and the filing of the "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc."5

Accordingly, at the time the Superior Court denied the "Notice of Motion for Specific Performance of Plea Bargain Agreement, etc." on April 1, 2010: (1) no more than 70 days remained in the limitations period with respect to Petitioner's claims that the sentencing court assertedly failed to advise Petitioner of his appellate rights and counsel assertedly failed to prepare for and appear at trial and allegedly pressured Petitioner to accept a plea bargain; and (2) no more than 152 days remained in the limitations period with respect to Petitioner's claim that counsel failed to perfect an appeal. Petitioner did not file his first Superior Court habeas petition until November 24, 2010, well over 200 days later. Therefore, statutory tolling cannot rescue any of Petitioner's claims from the untimeliness bar.6

Petitioner's state habeas petitions filed after the expiration of the statute cannot revive or otherwise toll the statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"). Therefore, absent equitable tolling, the Petition is untimely.

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (citations omitted). "[A] `petitioner' is entitled to `equitable tolling' only if he shows `(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. at 418; see also Lawrence v. Florida, 549 U.S. 327, 336 (2007). The threshold necessary to trigger equitable tolling "is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.), cert. denied, 130 S.Ct. 244 (2009) (citations and internal quotations omitted). Petitioner bears the burden to show equitable tolling. See Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009). Petitioner must show that the alleged "extraordinary circumstances" were the "cause of [the] untimeliness." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006), cert. denied, 549 U.S. 1317 (2007) (brackets in original; quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Petitioner must show that an "external force" caused the untimeliness, rather than "oversight, miscalculation or negligence." Waldron-Ramsey v. Pacholke, 556 F.3d at 1011 (citation and internal quotations omitted).

Petitioner argues an entitlement to equitable tolling on the ground that Petitioner's trial counsel and Ms. Azari assertedly failed to perfect an appeal. As a matter of law, any such dereliction was not the cause of Petitioner's untimeliness and therefore cannot constitute a ground for equitable tolling. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir.), cert. denied, 131 S.Ct. 474 (2010) ("Counsel's failure to perfect an appeal simply meant that Randle had one year from the expiration of his time to file a notice of appeal in which to initiate a federal habeas action 2013 it did not prevent him from filing the petition.").

Petitioner also argues that equitable tolling should apply because Petitioner lacked an attorney during part of the post-conviction time period and Petitioner purportedly was diligent in his efforts to retain counsel. "[P]ro se status, on its own, is not enough to warrant equitable tolling." Roy v. Lampert, 465 F.3d at 970. Petitioner also contends neither he nor his wife had the money to pay Ms. Azari's fee for filing a habeas petition. Petitioner's alleged indigence, ignorance of the law, lack of legal sophistication and lack of legal assistance cannot warrant equitable tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d at 1013 n.4 ("we have held that a pro se petitioner's confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling") (citation omitted); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("we now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling"); Griffin v. Grounds, 2010 WL 5287524, at *3 (E.D. Cal. Dec. 17, 2010), aff'd, 472 Fed. App'x 527 (9th Cir. 2012) ("Petitioner's inability to afford a lawyer does not justify equitable tolling."); Jimenez v. Hartley, 2010 WL 5598521, at *5 (C.D. Cal. Dec. 6, 2010), adopted, 2011 WL 164536 (C.D. Cal. Jan. 13, 2011) (allegations that petitioner was uneducated, illiterate and indigent insufficient); Oetting v. Henry, 2005 WL 1555941 at *3 (E.D. Cal. June 24, 2005), adopted, 2005 WL 2000977 (E.D. Cal. Aug. 18, 2005) ("Neither an inmate's ignorance of the law nor pro se status are the sort of extraordinary events upon which a finding of equitable tolling may be based"; cf. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy and pro se status insufficient cause to avoid procedural default).

To the extent Petitioner alleges that various attorneys ineffectively failed to advise Petitioner of the time limitations for filing a federal habeas petition, such allegation does not justify equitable tolling. See Holland v. Florida, 130 S. Ct. at 2564 ("`a garden variety claim of excusable neglect' [citation], such as a simple `miscalculation' that leads a lawyer to miss a filing deadline [citation], does not warrant equitable tolling"); Lawrence v. Florida, 549 U.S. at 336-37 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel [citation]."); Velasquez v. Kirkland, 639 F.3d at 969 (petitioner "must have been delayed by circumstances beyond his direct control, and not be his or his counsel's own mistake") (citation, internal brackets and quotations omitted); Miranda v. Castro, 292 F.3d 1063, 1067 (9th Cir.), cert. denied, 537 U.S. 1003 (2002) (appellate attorney's miscalculation of AEDPA statute of limitations does not warrant equitable tolling). "[R]outine instances of attorney negligence do not constitute an `extraordinary circumstance' that requires equitable tolling." Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (citation and footnote omitted); McDonald v. Director, 2009 WL 4756576, at *3 (N.D. Cal. Dec. 8, 2009) (counsel's failure to inform petitioner of the limitations deadline does not merit equitable tolling).

In sum, Petitioner is not entitled to any equitable tolling. The Petition is untimely.7

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.