Bailey v. Schriro

Full title: Randy Scott Bailey, Petitioner, v. Dora B. Schriro, et al., Respondents

Court: United States District Court, D. Arizona

Date published: Jun 7, 2006

No. CIV 04-0131-PHX-MHM (MS) (D. Ariz. Jun. 7, 2006)

Opinion

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

June 7, 2006

ORDER

MARY MURGUIA, District Judge

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 (9^th Cir. 2003) (en banc). See 28 U.S.C. § 636(b)(1)(C) ("[a] judge of the court shall 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 (9^th 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 (9^th 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.