Opinion
CIVIL ACTION NO. 4:01-CV-723-Y
December 14, 2001
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on November 15, 2000.
3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on December 7, 2001 and supplemental objections filed on December 7, 2001.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, that Respondent's motion to dismiss for lack of exhaustion should be granted, and that the petition for writ of habeas corpus should be dismissed for the reasons stated in the magistrate judge's findings and conclusions.
The Court notes that Texas law provides the opportunity for one charged with a felony to seek habeas corpus relief in state court prior to conviction. See TEX CODE CRIM. PROC. ANN. articles 11.01 and 11.08 (Vernon 1977).
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Respondent's September 25, 2001 Motion to Dismiss for Failure to Exhaust State Remedies [docket no. 6] be, and is hereby, GRANTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITHOUT PREJUDICE.
Except as to any application of the federal statute of limitations or other federal procedural bar that may apply. As a result of amendments to the habeas corpus statutes, a one-year statute of limitations is now applicable to the filing of non-capital § 2254 habeas corpus petitions in federal court. See 28 U.S.C.A. § 2244(d) (West Supp. 2001). Section 2244(d)(1) sets forth the general rule that a federal habeas petition filed by a person in custody pursuant to the judgment of a state court must be filed within one year after the petitioner's conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A) (West Supp. 2001). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C.A. § 2244(d)(2) (West Supp. 2001).
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.