Betty Dove Wright, Petitioner-appellant, v. Robert Skipworth; Attorney General of the State of Southdakota, Respondents-appellees, 13 F.3d 408 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.² 

Petitioner-appellant, Betty Dove Wright, appeals from the district court's dismissal of her 28 U.S.C. 2254 petition for a writ of habeas corpus. Wright was convicted of arson in South Dakota and is presently on parole in Colorado. Wright filed a 2254 petition in the District of Colorado on March 24, 1993, claiming a number of violations of her rights: 1) that evidence was falsified in a search warrant; 2) that the prosecutors submitted false evidence regarding whether matches were found in Wright's basement and whether her house had been entered at particular periods of time; 3) that the police made an adoptive admission to having participated in the falsification of evidence; and 4) that her arrest warrant contained false information. See District Court Order of June 17, 1993 at 2.

Defendants moved to dismiss the petition on the grounds that it was an abusive or successive writ under Rules Governing Section 2254, Rule 9(b), because Wright had filed an earlier habeas corpus petition that raised many or all of the same issues. That earlier petition was denied by the District of South Dakota on summary judgment after Wright failed to respond to the motion for summary judgment.

The magistrate in this case recommended that the district court find that the claims within Wright's present petition were successive or abusive. Further, the Magistrate recommended that the district court find that Wright did not show cause why she could not have filed any of the new claims in the previous writ and that she did not show that there would be a fundamental miscarriage of justice if her petition were denied.

The district court accepted the magistrate's report, and dismissed Wright's petition as successive and abusive. The court determined that the prior petition had been dismissed on the merits, since summary judgment is a disposition on the merits.

We agree with the district court for the reasons stated in the order and the magistrate judge's recommendation.

The order of the district court dismissing Wright's 2254 petition as successive and abusive is AFFIRMED.