Reyna v. Johnson

Full title: JACOB J. REYNA, Petitioner, vs. GARY JOHNSON, Director, Texas Department…

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

Date published: Jul 26, 2001

CIVIL ACTION NO. 4:00-CV-1540-Y (N.D. Tex. Jul. 26, 2001)

Opinion

CIVIL ACTION NO. 4:00-CV-1540-Y

July 26, 2001

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

TERRY MEANS, 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 July 5, 2001.

3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on July 23, 2001.

The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, and that the Respondent's Motion to Dismiss under 28 U.S.C. § 2244 (d) should be granted, and that the petition for writ of habeas corpus should be dismissed with prejudice, for the reasons stated in the magistrate judge's findings and conclusions.¹

1 In his written objections, Reyna contends that he could not have know of his claim until December 1998, and that, such is the time period the limitation period should commence. This argument is without merit, however, even if the applicable 28 U.S.C. § 2244 limitation period were to commence in December 1998, and Reyna is given tolling credit for the 46 days his state application was pending pursuant to 28 U.S.C. § 2244 (d)(2), his § 2254 federal application would have been due by no later than February 15, 2000. It was not constructively filed until July 18, 2000.

It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.

It is therefore ORDERED that Respondent's October 23, 2000 Motion to Dismiss as Time Bared pursuant to 28 U.S.C. § 2244 (d) [docket no. 10] be, and is hereby, GRANTED.

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.