Eddy #053476 v. Ryan et al

Filing 53

ORDER accepting Report and Recommendations 47 .... IT IS FURTHER ORDERED that the Court denies Petitioner's Motion for Relief from Judgment or Order. (Doc. 40 .) IT IS FURTHER ORDERED that the Court construes Petitioner's Motion for Dec laratory Relief (Doc. 39 ) as a motion to supplement the Second Amended Petition for Writ of Habeas Corpus and grants that motion. IT IS FURTHER ORDERED that the Court denies Petitioner's motions for expedited ruling on his Motion for Declaratory Relief and Motion for Relief from Judgment. (Docs. 41 , 42 .) (See document for full details). Signed by Judge Neil V Wake on 9/8/15.(LAD)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

No. CV-14-08047-PCT-NVW (BSB)

Dennis Paul Eddy,

10

Petitioner,

11
12

ORDER

v.
Charles L. Ryan, et al.,

13
14

Respondents.
Pending before the Court is the Report and Recommendation (“R&R”) of

15

Magistrate Judge Bridget S. Bade (Doc. 47) regarding petitioner’s Second Amended

16

Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 22). The

17

R&R recommends that Grounds One, Two and Three of the Second Amended Petition be

18

dismissed without prejudice to Petitioner seeking permission from the Ninth Circuit to

19

bring those claims in a successive petition for writ of habeas corpus. The R&R further

20
21
22
23

recommends the claims asserted in Grounds Four, Five, and Six are not successive and
recommends that Respondents be directed to answer those claims.
The R&R further recommends that the motion for declaratory judgment (Doc. 39)
be construed as a motion to supplement the Second Amended Petition be granted and that

24

Respondents be ordered to answer the claims in that filing.

25

recommends that Petitioner’s remaining motions (Docs. 40, 41, 42) be denied. The

26
27
28

Finally, the R&R

Magistrate Judge advised the parties that they had fourteen days to file objections to the
R&R. (R&R at 12 (citing 28 U.S.C. § 636(b)(1)); Fed. R.Civ P. 6 and 72. Petitioner

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

filed objections on September 3, 2015 (Doc. 52).
objections.

The Court has considered the objections and reviewed the Report and
Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that
the court must make a de novo determination of those portions of the Report and
Recommendation to which specific objections are made). The Court agrees with the
Magistrate Judge’s determinations, accepts the recommended decision within the
meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28
U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 47) is accepted in that the Court dismisses Grounds One, Two,
and Three without prejudice to Petitioner seeking authorization from the Ninth Circuit to
bring those claims in a successive § 2254 petition, and that the Court denies Petitioner’s
request to stay this matter (Doc. 46 at 4) while he seeks such authorization.
IT IS FURTHER ORDERED that the Court denies Petitioner’s Motion for Relief
from Judgment or Order. (Doc. 40.)
IT IS FURTHER ORDERED that the Court construes Petitioner’s Motion for
Declaratory Relief (Doc. 39) as a motion to supplement the Second Amended Petition for
Writ of Habeas Corpus and grants that motion.
IT IS FURTHER ORDERED that Respondents shall file an answer to Grounds
Four, Five, and Six and to the motion for declaratory relief (construed as a motion to
supplement the Second Amended Petition) within thirty days of the Court’s order, and
that Petitioner may file a reply within thirty days of service of Respondents’ answer.

25
26
27
28

Respondents have not filed any

-2 

1
2
3
4

IT IS FURTHER ORDERED that the Court denies Petitioner’s motions for
expedited ruling on his Motion for Declaratory Relief and Motion for Relief from
Judgment. (Docs. 41, 42.)
Dated this 8th day of September, 2015.

5
6
7
Neil V. Wake
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3