Opinion
No. 3:04-CV-618-L.
August 13, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS :
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is serving a twenty-five year term of incarceration imposed by the 265th Judicial District Court of Dallas County pursuant to his conviction for the offense of burglary of a habitation. Petition ¶¶ 1-4. He did not file a direct appeal. Id. at ¶ 8. It appears that Petitioner sought relief from the Texas Court of Criminal Appeals without success. See Petition ¶¶ 10-11. Henry seeks to challenge his conviction on grounds of ineffective assistance of counsel, involuntary plea of guilty and insufficient evidence to sustain a conviction. Petition ¶¶ 20.A-D.
Upon preliminary review, it appeared to the Court that this action was likely barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). Accordingly, an order was entered directing Petitioner to file a statement either explaining why he believes this case is not time-barred or setting forth reasons for equitable tolling of the limitation period. He was ordered to file his reply within thirty days. A review of the Clerk's docket sheet reflects that Petitioner has failed to comply with the Court's order.
Rule 41(b), Federal Rules of Civil Procedure, allows the District Court to dismiss an action sua sponte for failure to prosecute or failure to follow orders of the Court. This authority flows from the Court's power to manage its docket. Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386 (1962)). Because Petitioner has failed to respond to the Court's order, this case is subject to dismissal.
RECOMMENDATION :
For the foregoing reasons, the undersigned Magistrate Judge recommends that the petition be dismissed pursuant to Rule 41(b), Federal Rules of Civil Procedure, for want of prosecution.