Resendez v. Lumpkin

• Court: District Court, S.D. Texas
• Decided: March 8, 2023
• Docket: 7:22-cv-00045
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT March 08, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk MCALLEN DIVISION

EUSTORGIO GUZMAN RESENDEZ, § § Petitioner, § § VS. § CIVIL ACTION NO. 7:22-cv-00045 § BOBBY LUMPKIN, § § Respondent. §

ORDER

Pending before the Court is Petitioner Eustorgio Guzman Resendez’ Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, which had been referred to the Magistrate Court for a report and recommendation. On February 2, 2023, the Magistrate Court issued the Report and Recommendation, recommending that Respondent’s motion for summary judgment be granted, that Petitioner’s § 2254 habeas petition be denied, that Petitioner’s “Motion for Forensic DNA Testing” be denied, that Petitioner be denied a certificated of appealability, and that this action be dismissed.1 In the interim, petitioner has filed additional exhibits.2 The Court has reviewed those exhibits and finds that they are not objections to the Magistrate Court’s Report and Recommendation, and do not impact the findings of the Magistrate Court.3 Thus, Petitioner has not filed objections to the Magistrate Court’s Report and Recommendation and the time for doing so has now passed.4

1 Dkt. No. 10 at 16. 2 Dkt. No. 12. 3 Id. 4 Dkt. No. 10 at 13. Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error.° Finding no clear error, the Court adopts the Report and recommendation as set out herein. Accordingly, it is hereby ORDERED that Respondent’s Motion for Summary Judgment is GRANTED, that Petitioner’s Petition for Writ of Habeas Corpus Pursuant to § 2254 is DENIED,’ that Petitioner’s “Motion for Forensic DNA Testing” is DENIED,* that Petitioner is denied a certificate of appealability, and that this action is DISMISSED. IT IS SO ORDERED. DONE at McAllen, Texas, this 8th day of March 2023. Worn Micaela Alv United States District Judge

> Douglas v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1420 (Sth Cir. 1996) (quoting FED. R. Civ. P. 72(b) advisory committee’s note (1983)) superceded by statute on other grounds by 28 U.S.C. § 636(b)(1), as stated in ACS Recovery Servs., Inc. v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n.5 (Sth Cir. Apr. 2, 2012) (“[t]he advisory committee’s note to Rule 72(b) states that, ‘[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’”). © Dkt. No. 5. 7 Dkt. No. 1. 8 Dkt. No. 9.

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