Morley v. Elliott et al

Filing 108

ORDER and CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS that the Report and Recommendation 76 is accepted. ORDER that the Report and Recommendation 79 is accepted. ORDER that Respondents' Motion to Dismiss for Lack of Jurisdictio n (Mootness) 66 is GRANTED. ORDER that the Clerk of the Court enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus 1 with prejudice. The Clerk shall terminate this action. Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. Signed by Judge Neil V Wake on 5/3/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Adrian Morley,
Petitioner,

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v.

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Yolanda Elliott, et al.,
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Respondents.
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No. CV-09-01554-PHX-NVW (LOA)
ORDER
and
CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS STATUS

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Pending before the Court is Magistrate Judge Lawrence O. Anderson’s Report and

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Recommendation (“R&R”) (Doc. 79) regarding petitioner’s Petition for Writ of Habeas

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Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1), and a second R&R (Doc. 76) regarding

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respondents’ motion to dismiss for lack of jurisdiction (Doc. 66).

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recommends that the Petition be denied and dismissed with prejudice, and second R&R

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recommends granting the motion to dismiss. The Magistrate Judge advised the parties that

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they had fourteen days to file objections to the R&R (Doc. 76 at 16 (citing

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28 U.S.C. § 636(b); Doc. 79 at 38 (same)), and the Court later extended and consolidated the

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briefing time (Docs. 83, 85, 95). Petitioner filed objections on April 22, 2011. (Docs. 105,

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106.)

The first R&R

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The Court has considered the objections and reviewed both R&Rs de novo. See Fed.

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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the Report and Recommendation to which specific

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objections are made). The Court agrees with the Magistrate Judge’s determinations, accepts

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both recommended decisions within the meaning of Rule 72(b), Fed. R. Civ. P., and

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overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court

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“may accept, reject, or modify, in whole or in part, the findings or recommendations made

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by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate
Judge (Doc. 76) is accepted.
IT IS FURTHER ORDERED that Report and Recommendation of the Magistrate
Judge (Doc. 79) is accepted.
IT IS FURTHER ORDERED that Respondents’ “Motion to Dismiss for Lack of
Jurisdiction (Mootness)” (Doc. 66) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and

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dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254

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(Doc. 1) with prejudice. The Clerk shall terminate this action.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of

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Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has

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not made a substantial showing of the denial of a constitutional right.

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DATED this 3rd day of May, 2011.

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