ORDER (1) ADOPTING IN PART AND REJECTING IN PART THE RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND (2) DISMISSING PETITION

DANA M. SABRAW, District Judge.

Before the Court is United States Magistrate Judge Mitchell D. Dembin's Report and Recommendation ("R&R") recommending that the Court dismiss the present habeas corpus petition as untimely. There are no objections to the R&R. For the reasons set forth below, this Court adopts in part and rejects in part the R&R, and dismisses the petition.

I.

DISCUSSION

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is challenging the California Department of Corrections's calculation of Petitioner's earliest possible release date. Respondent asserts the Petition is untimely, and should be dismissed. Magistrate Judge Dembin agrees with Respondent, and recommends the Court dismiss the Petition as untimely.

A. Standard of Review

The duties of the district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made[,]" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005).

In this case, there are no objections to the R&R. Based on this Court's review, the Court agrees with the Magistrate Judge that the Petition is untimely and must be dismissed. The Court agrees that Petitioner is not entitled to equitable tolling of the statute of limitation. The Court also agrees that statutory tolling does not save the Petition, but for different reasons set out below.

B. Statute of Limitations

AEDPA sets out a one-year period of limitations for state habeas corpus petitions. See 28 U.S.C.A. § 2244(d)(1). It provides:

The limitation period shall run from the latest of—

28 U.S.C. § 2244(d)(1).

Here, the Magistrate Judge found Petitioner's statute of limitations began to run on March 7, 2013, which is when Petitioner was informed that he was only eligible for twenty percent time-served credit for his possession sentence. (R&R at 5.) Petitioner therefore had until March 7, 2014, to file his federal petition.

Petitioner did not file his federal petition by that date. Instead, on October 18, 2013, Petitioner filed a habeas petition in Imperial County Superior Court. (See Docket No. 1 at 20.)1 By that date, 224 days had expired from Petitioner's one-year statute of limitations. While that petition was pending, Petitioner's statute of limitations was tolled. See 28 U.S.C. §2244(d)(2).2 The superior court denied that petition on November 7, 2013.

The Magistrate Judge found Petitioner was entitled to statutory tolling between the time the superior court denied the petition on November 7, 2013, and January 22, 2014, which is when Petitioner filed his next habeas petition in the California Court of Appeal. (R&R at 12.) However, this Court disagrees with that assessment as the second petition was filed more than 60 days after the first petition was denied. See Stewart v. Cate, 757 F.3d 929, 935 (9th Cir.), cert. denied, Stewart v. Beard, ___ U.S. ___, 135 S.Ct. 341 (2014) (discussing Supreme Court's "thirty-to-sixty-day benchmark for California's `reasonable time' requirement"). That delay took an additional 74 days off Petitioner's one-year statute of limitation, which when combined with the previous 224 days, amounted to a total of 298 days that had expired from Petitioner's one-year statute of limitation.

Petitioner's statute of limitation was tolled while his habeas petition was pending before the California Court of Appeal, but it restarted when the court denied that petition on February 11, 2014. On that date, Petitioner had 67 days remaining, or until April 21, 2014,3 to file his federal habeas petition. He did not do so, and thus his statute of limitation expired, rendering the present petition untimely.4

II.

CONCLUSION AND ORDER

With the exception of the Magistrate Judge's analysis of statutory tolling, the Court agrees with the Magistrate Judge's findings, specifically, that Petitioner is not entitled to equitable tolling and that the Petition is untimely. Accordingly, the Court dismisses the Petition. The Clerk of Court shall enter judgment accordingly, and close this case.

IT IS SO ORDERED.