Whitaker v. Director

• Court: District Court, E.D. Texas
• Decided: March 23, 2021
• Docket: 6:19-cv-00516
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

TONY CURTIS WHITAKER, § § Petitioner, § § v. § Case No. 6:19-cv-516-JDK-JDL § DIRECTOR, TDCJ-CID, § § Respondent. §

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Petitioner Tony Curtis Whitaker, proceeding pro se, filed this federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to United States Magistrate Judge John D. Love for findings of fact, conclusions of law, and recommendations for disposition. Respondent filed a response and the state court records on December 19, 2019. Docket Nos. 9, 10. On February 8, 2021, Judge Love issued a Report and Recommendation recommending that the Court deny the petition and dismiss this case with prejudice. Judge Love also recommended that a certificate of appealability be denied. Docket No. 13. A copy of this Report was mailed to Petitioner and he is presumed to have received it. See Faciane v. Sun Life Assurance Co. of Canada, 931 F.3d 412, 420–21 & n.9 (5th Cir. 2019) (a letter properly placed in the United States mail is presumed to have reached its destination in the usual time and to have been received by the addressee). This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a party objects within fourteen days of service of the Report and Recommendation. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire record and makes an independent assessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en bane), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). Here, Petitioner did not object in the prescribed period. The Court therefore reviews the Magistrate Judge’s findings for clear error or abuse of discretion and reviews the legal conclusions to determine whether they are contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding that, if no objections to a Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law’). Having reviewed the Magistrate Judge’s Report and the record in this case, the Court finds no clear error or abuse of discretion and no conclusions contrary to law. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge (Docket No. 13) as the findings of this Court. This petition for habeas corpus is hereby DISMISSED WITH PREJUDICE. The Court DENIES a certificate of appealability. So ORDERED and SIGNED this 28rd day of March, 2021. qu J Kerb JHREMYD. KERN DLE UNITED STATES DISTRICT JUDGE