Laws v. Schriro et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. The 10 Report and Recommendation is adopted; Respondents' 8 Motion to Dismiss for Lack of Subject Matter Jurisdiction is granted; Petitioner's Petition for Writ of Habeas Corpus is denied and dismissed without prejudice. Signed by Judge Earl H Carroll on 9/8/09. (REW, )

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 vs. Dora B. Schriro, et al., Respondents. Darlene Laws, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-2143-PHX-EHC (ECV) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

On December 14, 2005, Petitioner filed a Petition for Writ of Habeas Corpus, alleging ten claims for relief. Laws v. Harkins, et al., CV 05-4102-PHX-EHC. On July 24, 2006, the Court denied nine of the claims on procedural default grounds and the tenth on the merits. (CV 05-4102-PHX-EHC, Dkt. 14.) On November 19, 2008, Petitioner filed this Petition for Writ of Habeas Corpus. (Dkt. 1.) On January 12, 2009, Respondents filed a Motion to Dismiss Second or Successive Habeas Corpus Petition for Lack of Subject Matter Jurisdiction. (Dkt. 8.) A "second or successive" Petition for Writ of Habeas Corpus, under 28 U.S.C § 2254, may be filed in the district court only if a petitioner first obtains an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner has not received an order from the Ninth Circuit authorizing this Court to consider the November 19, 2008 Petition. Petitioner's November 19, 2008 Petition raises four claims, which were raised or could have been raised in the December 14, 2005 Petition.

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On August 14, 2009, the Magistrate Judge issued a Report and Recommendation, recommending that the Motion to Dismiss be granted and the Petition be denied and dismissed without prejudice.1 (Dkt. 10.) On August 20, 2009, Petitioner filed a Reply to Report and Recommendation, which the Court construes as an objection. (Dkt. 11.) Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the record de novo, including Petitioner's objection. The Court adopts in full the Magistrate Judge's Report and Recommendation (Dkt. 10) and incorporates the same as a part of this Order. Accordingly, IT IS ORDERED adopting the Report and Recommendation (Dkt. 10) and incorporating the same as a part of this Order. IT IS FURTHER ORDERED that Respondents' Motion to Dismiss Second or Successive Habeas Corpus Petition for Lack of Subject Matter Jurisdiction (Dkt. 8) is granted. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) is denied and dismissed without prejudice. DATED this 8th day of September, 2009.

On September 1, 2009, the Magistrate filed a Notice of Error, clarifying that the recommendation was to dismiss without prejudice and amending page 3, line 19 of the Report and Recommendation to read "DISMISSED WITHOUT PREJUDICE." (Dkt. 12.) -2-

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