Opinion
CASE NO. 1:01-cv-00050-MP-AK.
January 4, 2008
ORDER
This matter is before the Court on Doc. 77, Motion to Amend, Motion for Certificate of Appealability, Motion to Appoint Counsel by Paul D Partridge. Previously, the Court entered an order adopting the Report and Recommendation of the Magistrate Judge and dismissing Mr. Partridge's initial habeas petition on the merits. Doc. 26. Specifically, the Court noted that "petitioner never fairly presented his claims regarding detective Lentz to the state courts and thus he may not raise it here for the first time." Additionally, the Court adopted and incorporated the Report and Recommendation which found that that claim would be procedurally barred in the state court. Thus, it would be dismissed with prejudice rather than without prejudice.
Later, Mr. Partridge filed an amended habeas petition, seeking to bring the claims regarding Mr. Lentz. The Court, in doc. 75, agreed with the Magistrate Judge that this was an attempt to file a successive petition without permission, and dismissed the amended petition. Mr. Partridge now argues that under Rose v. Lundy, 455 U.S. 509 (1982), his claim regarding Lentz should have been dismissed without prejudice, so that he could return to state court to attempt to exhaust state remedies. Mr. Partridge is incorrect, however, because (as the Magistrate Judge stated in the original Report and Recommendation in this case) his claim was already procedurally barred under state rules and thus could never be exhausted for federal habeas review purposes. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The motion to amend or correct, the motion for certificate of appealability and the motion for appointment of counsel, all found within doc. 77, are denied.
DONE AND ORDERED.