Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ERNESTO JOSE LOPEZ, Petitioner, vs. DORA B. SHRIRO, et al., Respondents.

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CIV 03-1241 PHX JWS ORDER FROM CHAMBERS [Re: Docket 34 and 36]

I. MATTER PRESENTED At docket 11, Ernesto Jose Lopez filed his amended petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. At docket 20, Respondents opposed the petition. Magistrate Judge Morton Sitver filed his report at docket 34, recommending that the petition be denied and dismissed with prejudice. At docket 36, Lopez filed a "motion for order to dismiss habeas without prejudice," which this court considers to be an objection to the report and recommendation.

Case 2:03-cv-01241-JWS

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II. STANDARD OF REVIEW The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."1 When reviewing a magistrate judge's report and recommendation in a habeas case, the district court reviews de novo conclusions of law 2 and findings of fact to which parties object.3 The court reviews for clear error uncontested findings of fact.4 III. DISCUSSION Having reviewed the magistrate judge's report and recommendation and the objection thereto under the standard established above, the court adopts the magistrate judge's report and recommendation. The objection asks the court to dismiss without prejudice so that petitioner can present new claims to the state court. However, the time for presenting the new claims in state court has run. In any event, the claims which have been presented to this court lack merit for the reasons stated by the magistrate judge.

1

28 U.S.C. § 636(b)(1).

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
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2

28 U.S.C. § 636(b)(1). Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 906 (3d Cir. 1992).

4

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IV. CONCLUSION For the reasons set out above, this court ACCEPTS the report and recommendation at docket 34, the "motion" at docket 36 is DENIED, and Lopez's petition is DENIED. DATED at Anchorage, Alaska, this 1st day of August 2005.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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