Stavenjord v. Stolc

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Motion to Dismiss filed by Bruno Stolc. Mot at dkt 7 granted in part and denied in part; Fourth Amendments claim dismised w/prejudice; ineffective assistance of counsel claim shall proceed and remains on referral to MJ Smith. Signed by Judge John W. Sedwick on 7/23/09. (LSC, COURT STAFF)

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PAUL T. STAVENJORD, Petitioner, vs. JOSEPH D. SCHMIDT, Respondent. ) ) ) ) ) ) ) ) ) )

3:08-cv-00223 JWS ORDER AND OPINION [Re: Motion at docket 7]

At docket 7 respondent moved to dismiss Paul T. Stavenjord's petition for a writ of habeas corpus. Stavenjord responded at docket 10, and his response was treated as a motion to amend, which was ultimately granted. Thereafter, based on the record, the magistrate judge filed a report recommending that the motion to dismiss should be granted as to Stavenjord's Fourth Amendment claim, but that his claim based on ineffective assistance of counsel should remain for determination. No party filed any objections to this recommendation. This court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When reviewing a magistrate judge's recommendations in a case such as this one, this court conducts de novo review of all recommended conclusions of law, and any recommended findings of fact to which objections have been taken. Recommended findings of fact as to which no objection has been taken are reviewed for clear error. Having applied those standards of review, this court finds that the recommended findings of fact and conclusions of law are correct in all material respects.

This court adopts Magistrate Judge Smith's recommendations. Based thereon, the motion at docket 7 is GRANTED in part and DENIED in part as follows: (1) Stavenjord's Fourth Amendment claim is DISMISSED with prejudice; (2) Stavenjord's ineffective assistance of counsel claim shall proceed. The ineffective assistance of counsel claim remains on referral to Magistrate Judge Smith. DATED at Anchorage, Alaska, this 23rd day of July 2009. /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE