Holt v. Fleming

Full title: Gary William Holt, Petitioner, v. L.E. Fleming, Warden, FMC-Fort Worth…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Dec 5, 2002

Civil Action No. 4:02-CV-704-Y (N.D. Tex. Dec. 5, 2002)

Opinion

Civil Action No. 4:02-CV-704-Y

December 5, 2002

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)

TERRY R. MEANS, United States District Judge

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 8, 2002.

3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on December 2, 2002.

The Court, after de novo review, finds and determines that Petitioner's objections must be overruled,¹ that the Respondent's October 7, 2002 motion to dismiss should be granted, and that the petition for writ of habeas corpus under 28 U.S.C. § 2241 should be dismissed with prejudice for the reasons stated in the magistrate judge's findings and conclusions.

1 With regard to Petitioner's objection on the basis that the magistrate judge did not expressly address his claim for mandamus relief, because Holt's claim for mandamus relief directly implicates and challenges the legality of his confinement, such claim is properly construed as seeking only habeas corpus relief under 28 U.S.C. § 2241. See Davis v. Fechtel, 150 F.3d 486, 488 (5^th Cir. 1998) (construing mandamus petition challenging duration of confinement as a section 2241 claim); Oneal v. Johnson, No. 3:01CV2665D, 2002 WL 413868 at *2 (N.D.Tex. March 11, 2002) ("when appropriate, federal courts treat a petition for writ of mandamus as a petition for writ of habeas corpus").

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 the respondent's October 7, 2002 Motion to Dismiss [docket no. 10-1] be, and is hereby, GRANTED.²

2 The alternative motion to extend time [docket 10-2] is DENIED as moot.

It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.

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.