Ware v. Leider

Full title: Kevin Ware, Petitioner, v. Laurie Leider, et al., Respondents

Court: United States District Court, D. Arizona

Date published: Sep 11, 2006

No. CV 05-0649-PHX-MHM (ECV) (D. Ariz. Sep. 11, 2006)

Opinion

No. CV 05-0649-PHX-MHM (ECV).

September 11, 2006

ORDER

DAVID CAMPBELL, District Judge

Petitioner proceeding pro se has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his guilty plea to one count of possession of marijuana for sale and one count of endangerment entered in the Superior Court, Maricopa County, State of Arizona. The matter was referred to United States Magistrate Judge Edward C. Voss who has issued a Report and Recommendation that recommends that the Petition should be denied and dismissed with prejudice. (Doc. 10). Petitioner has not filed an objection to the Report and Recommendation of the Magistrate Judge.

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 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. 10) 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.

IT IS FURTHER ORDERED that this action is dismissed with prejudice.