ORDER ADOPTING REPORT AND RECOMMENDATION

MARSHA J. PECHMAN, District Judge.

THIS MATTER comes before the Court on Petitioner Joseph Glen Blue's Objections, (Dkt. No. 21), to the Report and Recommendation of the Honorable James P. Donohue, United States Magistrate Judge. (Dkt. No. 20.) Having reviewed the Report and Recommendation, Petitioner's Objections, and all related papers, the Court ADOPTS the Report and Recommendation. Petitioner's habeas petition is DENIED as untimely and this case is DISMISSED with prejudice.

Background

Petitioner Joseph Glen Blue seeks Section 2254 habeas relief from his 2008 Washington State conviction of rape in the first degree. (Dkt. Nos. 3, 10.) The Report and Recommendation ("R&R") summarizes the relevant facts and the procedural history of Mr. Blue's criminal case. (Dkt. No. 20 at 2-6.) The Court does not repeat them here.

In the R&R, Judge Donohue recommended this Court dismiss Mr. Blue's habeas petition and deny the issuance of a certificate of appealability on that grounds that the habeas petition is untimely. (Id. at 10.) Mr. Blue filed objections to the R&R. (Dkt. No. 21.) In the objections, Mr. Blue argues Judge Donohue failed to consider his argument that his habeas petition is timely pursuant to the "actual innocence" exception to the Antiterrorism and Effective Death Penalty Act's ("AEDPA") statute of limitations. (Id. at 1.) Specifically, he contends there was insufficient evidence of injury presented at trial to support his conviction. (Id. at 3.)

A. Legal Standard

Under Federal Rule of Civil Procedure 72, the district judge must resolve de novo any part of the Magistrate Judge's R&R that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); See also 28 U.S.C. § 636(b)(1).

B. Mr. Blue's Objection to the R&R

The Supreme Court has held that the "actual innocence" exception applies to AEDPA's statute of limitations. See McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013). "[A] credible claim of actual innocence constitutes an equitable exception to AEDPA's limitations period, and a petitioner who makes such a showing may pass through the Schlup gateway and have his otherwise time-barred claims heard on the merits." Lee v. Lampert, 653 F.3d 929, 932 (9th Cir. 2011). Under Schlup v. Delo, 513 U.S. 298, 314-15 (1995), a petitioner must produce sufficient proof of his actual innocence to bring him "within the narrow class of cases . . . implicating a fundamental miscarriage of justice." (quotations omitted). A petitioner must "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Actual innocence in this context "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24 (1998). A petitioner must support his claim of actual innocence "with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not presented at trial." Schlup, 513 U.S. at 324.

Mr. Blue fails to meet this burden because he provides no new evidence of his factual innocence. Instead, he argues that "evidence of any injury accrued by the victim [at his trial] did not amount to any injury even requiring a follow up doctor's care, nor was there any injuries of sexual battery, only injuries consistent with a physical altercation between the Petitioner and the victim were shown." (Dkt. No. 21 at 3.) But this legal argument, absent any new evidence, is insufficient to satisfy Schlup's exacting "actual innocence" standard. Lee, 653 F.3d at 937-38; see also Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). Accordingly, Mr. Blue's objection to the R&R fails to show any error in the R&R.

Conclusion

The Court ADOPTS the Report and Recommendation. Petitioner's habeas petition is DENIED as untimely and this case is DISMISSED with prejudice. In accordance with Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, a certificate of appealability is DENIED with respect to the Court's determination that petitioner's habeas petition is time-barred.

The clerk is ordered to provide copies of this order to all counsel.