Ardizzone v. Jones et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 16 of Magistrate Judge Gary Purcell and grants respondent's motion 12 to dismiss...the petition for writ of habeas corpus is dismissed. Signed by Honorable Joe Heaton on 12/03/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARTY RAY ARDIZZONE,
Petitioner,
vs.
JUSTIN JONES, Director,
Respondent.

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Case No. CIV-12-0913-HE

ORDER
Petitioner Marty Ray Ardizzone, a state prisoner appearing pro se, has filed a Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging two convictions for
Murder in the First Degree following his guilty pleas in state court. Pursuant to a plea
agreement, petitioner was sentenced to two terms of life imprisonment to be served
consecutively. However, petitioner asserts that the prosecutor promised him he would only
have to serve 25 to 30 years and seeks habeas relief in that regard. Presently before the court
is respondent’s motion to dismiss [Doc. #12], which characterizes the petition as an
unauthorized second or successive habeas petition over which the court lacks jurisdiction.
Consistent with 28 U.S.C. § 636(b)(1)(B), this matter was referred for initial proceedings to
Magistrate Judge Gary M. Purcell. Judge Purcell has recommended that the motion be
granted and that the Petition for Writ of Habeas corpus be dismissed for lack of jurisdiction.
Objections to the magistrate judge’s report and recommendation were due by November 28,
2012.
Petitioner, having failed to object to the report and recommendation, has waived his

right to review of the factual and legal issues it addressed. United States v. 2121 E. 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996); see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the
court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” (emphasis added)).
Accordingly, the court ADOPTS Magistrate Judge Purcell’s Report and Recommendation
[Doc. #16] and GRANTS respondent’s motion to dismiss [Doc. #12]. The Petition for Writ
of Habeas Corpus is DISMISSED.
IT IS SO ORDERED.
Dated this 3rd day of December, 2012.

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