Biggs v. Ryan et al

Filing 35

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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Kenneth Biggs, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-00291-PHX-FJM ORDER 15 16 17 The court has before it petitioner’s second amended petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254 (doc. 18), respondents’ response (doc. 24), petitioner’s reply 19 (doc. 27), and the report and recommendation of the United States Magistrate Judge 20 recommending that the second amended petition for writ of habeas corpus be denied and 21 dismissed with prejudice (doc. 33). We also have before us what is characterized as a motion 22 for reconsideration by the petitioner (doc. 34). This filing is properly construed as 23 petitioner’s objections to the Magistrate Judge’s report and recommendation. 24 Petitioner was convicted in 1994 of two counts of attempted sexual conduct with a 25 minor and sentenced to two consecutive 15-year terms of imprisonment. He filed a habeas 26 petition in 2004, challenging the same conviction and sentence that he challenges in the 27 present petition. See CV-04-2178-PHX-NVW. The court ruled that his petition was 28 untimely and dismissed the petition with prejudice (doc. 17). 1 The dismissal of a habeas petition as untimely under the AEDPA statute of limitations 2 “constitutes a disposition on the merits, and . . . a further petition challenging the same 3 conviction would be ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).” McNabb 4 v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). 5 Before a petitioner may file a second or successive habeas petition, he must “move 6 in the appropriate court of appeals for an order authorizing the district court to consider the 7 application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought this authorization in the 8 court of appeals. He is therefore precluded from habeas relief. 9 Pursuant to Rule 8(b), Rules Governing § 2254 Cases, we have considered petitioner’s 10 objections and reviewed the report and recommendation de novo. We accept the 11 recommended decision of the United States Magistrate Judge. Therefore, IT IS ORDERED 12 DENYING AND DISMISSING with prejudice the second amended petition for writ of 13 habeas corpus (doc. 18). 14 IT IS FURTHER ORDERED DENYING a certificate of appealability and leave 15 to proceed in forma pauperis on appeal because dismissal of the habeas petition is justified 16 on procedural grounds and jurists of reason would not find the procedural ruling debatable. 17 The clerk shall reclassify doc. 34 as objections to the report and recommendation. 18 DATED this 16th day of October, 2013. 19 20 21 22 23 24 25 26 27 28 -2-

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