Free Order on Report and Recommendations - District Court of Arizona - 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 Pending before the Court is Petitioner Barry Ammons' Petition for Writ of Habeas Corpus. [Doc. No. 1] On May 27, 2005, Magistrate Judge Edward C. Voss filed a Report and Recommendation, advising this Court that Petitioner's Petition should be denied and dismissed with prejudice. [Doc. No. 21] Respondent filed a Motion for Extension of Time to file Objections on July 27, 2005. [Doc. No. 24] This Court granted that Motion on August 1, 2005. [Doc. No. 25] Petitioner filed Objections on August 24, 2005. [Doc. No. 26] After considering Judge Aspey's Report and Recommendation and the arguments raised in Petitioner's Objections thereto, the Court now issues the following rulings. STANDARD OF REVIEW The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). The Court must review the legal analysis in the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). The Court must review the factual analysis in the Report and Recommendation de novo for those facts to which
Case 2:04-cv-00687-SMM Document 27 Filed 10/07/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barry AMMONS,

) ) Petitioner, ) ) v. ) ) Dora SCHRIRO, et al., ) ) Respondents. ) _________________________________ )

No. CV-04-0687-PHX-SMM (ECV) MEMORANDUM OF DECISION AND ORDER

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Objections are filed and for clear error for those facts to which no Objections are filed. See id.; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to file objections relieves the district court of conducting de novo review of the magistrate's factual findings). DISCUSSION Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and the objections having been made by Petitioner thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation, with the following addition. The Court finds that the Magistrate Judge adequately addressed all of Petitioner's arguments but one. Petitioner has put forth a claim of "actual innocence." That is, Petitioner argues that even if the statute of limitations has passed, he is "actually innocent" and his constitutional challenges should go forward. In Schlup v. Delo, the United States Supreme Court held that a petitioner "must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt" to prevail on a claim of "actual innocence." 513 U.S. 298, 327 (1995). Petitioner in this case has failed to meet that burden and therefore the Court need not reach a conclusion on whether "actual innocence" is an exception to the statute of limitations for petitions for writs of habeas corpus. CONCLUSION For the reasons set forth above, IT IS ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Edward C. Voss [Doc. No. 21] with the above addition. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus [Doc. No. 1] is DENIED and this action is DISMISSED WITH PREJUDICE.

DATED this 5 day of October, 2005.

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