Allen v. Schriro et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS, that the Magistrate Judge's 18 Report and Recommendation is accepted and adopted by the Court. The Petitioner's Petition for Writ of Habaes Corpus is dimissed and denied with prejudice. The Clerk of the Court shall close this case. Signed by Judge Paul G Rosenblatt on 09/08/09. (ESL)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Allen, Petitioner, v. Charles L. Ryan,1 et al., Respondents. ) ) ) ) ) ) ) ) ) CV 08-0932-PHX-PGR (DKD) ORDER Currently before the Court is the Report and Recommendation of Magistrate Judge Duncan (Doc. 18) based on Petitioner's Petition for Writ of Habeas Corpus2 filed pursuant to 28 U.S.C. 2254. Having reviewed de novo the Petition, the Report and Recommendation of Magistrate Judge Duncan3, and no party having filed any objection to the Report and Recommendation thereto, Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Charles L. Ryan, the Interim Director of the Arizona Department of Corrections, replaces Dora Schriro. 1 Petitioner raised four grounds for habeas relief:(1) ineffective assistance of counsel, (2) involuntary guilty plea, (3) double jeopardy, (4) excessive bail and cruel and unusual punishment. He has failed to establish that his guilty plea was involuntary, he asserts that he "was indirectly abandoned by his appointed counsel as a result of counsel's filing a notice of no colorable claims"and he has wholly failed to establish the existence of double jeopardy. Finally, Petitioner failed to properly raise his Eighth Amendment excessive bail and cruel and unusual punishment claims. 2 The Court agrees that his pleadings were untimely. Moreover, assuming federal courts have the authority to create equitable exceptions to jurisdictional time limitations, Allen has not established that he is eligible therefor. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 18) is ACCEPTED and ADOPTED by the Court. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED and DENIED with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall close this case. DATED this 8th day of September, 2009. 2 28

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