Sagaser v. Schriro et al

Filing 13

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 12 . ORDER that the petitioner's Petition for Writ of Habeas Corpus (2254) is denied and that this action is dismissed. The Clerk of the Court shall enter judgmnet accordingly. Signed by Judge Paul G Rosenblatt on 1/14/09. (TLJ)

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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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Rick Steele Sagaser, Jr., vs. Petitioner, Dora B. Schriro, et al., Respondents. ) ) ) ) ) ) ) ) ) No. CV-08-1267-PHX-PGR (GEE) ORDER Having considered de novo the Report and Recommendation of Magistrate Judge Edmonds notwithstanding that no party has filed any objection to the Report and Recommendation, the Court finds that the Magistrate Judge correctly determined that the petitioner's Petition for a Writ of Habeas Corpus, filed pursuant to 28 U.S.C. 2254, must be denied because the claim underlying the petition, i.e. that the petitioner is being held in custody past the expiration date of his state court sentence, has not been exhausted given that the petitioner, as he concedes, has not submitted it to the Arizona courts for resolution, and because the petition fails to state a federally cognizable claim as it is based on an alleged misapplication of state sentencing laws that does not rise to the level of fundamental unfairness. Therefore, IT IS ORDERED that the Magistrate Judge's Report and Recommendation 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 (doc. #12) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner's Petition Under 28 U.S.C. 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that this action is dismissed. The Clerk of the Court shall enter judgment accordingly. DATED this 14th day of January, 2009. -2-

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