Henry v. Dretke

Full title: ERIC WARREN HENRY, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Aug 13, 2004

No. 3:04-CV-618-L (N.D. Tex. Aug. 13, 2004)

Opinion

No. 3:04-CV-618-L.

August 13, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, 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.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).