Kuczynski v. Schriro et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS 26 . Petition for Writ of Habeas Corpus is DENIED and this action is DISMISSED with prejudice. Judgnent to be entered. Signed by Judge Frank R Zapata on 5/29/09. (LSI, )

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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 Pending before the Court is Petitioner Richard Thomas Kuczynski's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. 2254, presenting three grounds alleging violations of his Fifth, Sixth and Eighth Amendment rights. This matter was referred to the United States Magistrate Judge for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court for the District of Arizona. Magistrate Judge Hector C. Estrada issued his Report and Recommendation, recommending that the District Court, after its independent review of the record, dismiss this action in its entirety, based on Petitioner's failure to fairly and properly present his three habeas claims for relief to the state court, which are now procedurally barred from review. The Report and Recommendation provides an in-depth analysis of the procedural history and discussion of the facts and issues presented. vs. Dora B. Schriro; et. al., Respondents. Richard Thomas Kuczynski, Petitioner ) ) ) ) ) ) ) ) ) ) No. CV 06-460-TUC-FRZ (HCE) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 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 The Court, having made an independent review of the record herein, including Petitioner's objections, finds that Plaintiff failed to properly exhaust the grounds for habeas relief raised in his federal petition and that Petitioner is barred, pursuant to Rule 32.2(a) of the Arizona Rules of Criminal Procedure, from further review. Accordingly, based on Petitioner's failure to meet the requirements of exhaustion and based on procedural default, as set forth in the Report and Recommendation, the Court shall adopt the Report and Recommendation of Magistrate Judge Estrada as the findings of fact and conclusions of law of this Court. Based on the foregoing, IT IS ORDERED that the Report and Recommendation [Doc. #26] of Magistrate Judge Estrada is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED and that this action is hereby dismissed with prejudice. Judgment shall be entered accordingly. DATED this 29th day of May, 2009. -2-

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