Free Order Adopting Report and Recommendations - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Randy Scott Bailey, Petitioner, vs. Dora B. Schriro, et al.,

13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

) ) ) ) ) ) ) ) ) ) ) )

No. CIV 04-0131-PHX-MHM (MS) ORDER

Petitioner proceeding pro se has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his criminal convictions on six counts of armed robbery following a trial in the Superior Court, Maricopa County, State of Arizona. The matter was referred to United States Magistrate Judge Morton Sitver who has issued a Report and Recommendation that recommends that the Petition should be denied. (Doc. 33). Petitioner filed two motions for extensions of time in which to file objections to the Report and Recommendation. (Doc. 34 & 36). This Court granted both of Petitioner's motions. (Doc. 35 & 37). Petitioner has not filed any objections to the Report and Recommendation of the Magistrate Judge even though granted the additional time. STANDARD OF REVIEW The district court must review the Magistrate Judge's findings and recommendations de novo if objection is made but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc). See 28 U.S.C. § 636(b)(1)(C)("[a] judge of the court shall
Case 2:04-cv-00131-MHM Document 38 Filed 06/13/2006 Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made"). DISCUSSION The Court has considered the pleadings and documents of record in this case. The Court agrees with the Magistrate Judge's recommended rejection of Respondents' contention that the holding in Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999), that, except in habeas petitions in capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them, appears to have been overruled by the Supreme Court in Baldwin v. Reese, 541 U.S. 27 (2004). In Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir. 2005), the Ninth Circuit reiterated the holding in Swoopes. See, e.g., Skaggs v. Batros, 2006 WL 898160 (D.Ariz. 2006)(same). Regarding all other issues, as neither party has filed objections, the Report and Recommendation is adopted as the Order of the Court. Accordingly, IT IS ORDERED adopting the Magistrate Judge's Report and Recommendation (Doc. 33) as the Order of this Court. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is denied and dismissed with prejudice. DATED this 7th day of June, 2006.

-2Case 2:04-cv-00131-MHM Document 38 Filed 06/13/2006 Page 2 of 2