Biggs v. Ryan et al
Filing
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ORDER accepting the 33 Report and Recommendation. ORDERED denying and dismissing with prejudice the 18 Second Amended Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal. The clerk shall reclassify Doc. 34 as Objections to the Report and Recommendation. Signed by Senior Judge Frederick J Martone on 10/16/2013. (LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Michael Kenneth Biggs,
Petitioner,
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vs.
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Charles L. Ryan, et al.,
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Respondents.
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No. CV-12-00291-PHX-FJM
ORDER
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The court has before it petitioner’s second amended petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254 (doc. 18), respondents’ response (doc. 24), petitioner’s reply
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(doc. 27), and the report and recommendation of the United States Magistrate Judge
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recommending that the second amended petition for writ of habeas corpus be denied and
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dismissed with prejudice (doc. 33). We also have before us what is characterized as a motion
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for reconsideration by the petitioner (doc. 34). This filing is properly construed as
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petitioner’s objections to the Magistrate Judge’s report and recommendation.
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Petitioner was convicted in 1994 of two counts of attempted sexual conduct with a
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minor and sentenced to two consecutive 15-year terms of imprisonment. He filed a habeas
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petition in 2004, challenging the same conviction and sentence that he challenges in the
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present petition. See CV-04-2178-PHX-NVW. The court ruled that his petition was
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untimely and dismissed the petition with prejudice (doc. 17).
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The dismissal of a habeas petition as untimely under the AEDPA statute of limitations
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“constitutes a disposition on the merits, and . . . a further petition challenging the same
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conviction would be ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).” McNabb
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v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
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Before a petitioner may file a second or successive habeas petition, he must “move
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in the appropriate court of appeals for an order authorizing the district court to consider the
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application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought this authorization in the
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court of appeals. He is therefore precluded from habeas relief.
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Pursuant to Rule 8(b), Rules Governing § 2254 Cases, we have considered petitioner’s
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objections and reviewed the report and recommendation de novo.
We accept the
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recommended decision of the United States Magistrate Judge. Therefore, IT IS ORDERED
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DENYING AND DISMISSING with prejudice the second amended petition for writ of
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habeas corpus (doc. 18).
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IT IS FURTHER ORDERED DENYING a certificate of appealability and leave
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to proceed in forma pauperis on appeal because dismissal of the habeas petition is justified
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on procedural grounds and jurists of reason would not find the procedural ruling debatable.
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The clerk shall reclassify doc. 34 as objections to the report and recommendation.
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DATED this 16th day of October, 2013.
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