Opinion
CIVIL ACTION NO. 4:00-CV-1724-Y
March 6, 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 February 13, 2001.
3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on March 5, 2001.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, that the respondent's motion to dismiss for lack of exhaustion should be granted and the petitioner's motion to set aside denied, and that the petition for writ of habeas corpus should be dismissed for the reasons stated in the magistrate judge's findings and conclusions.
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 December 21, 2000 Motion to Dismiss for Failure to Exhaust State Remedies [document no. 8] be, and is hereby, GRANTED.
It is further ORDERED that Petitioner's January 19, 2001 Motion to Set Aside [document no. 9] be, and is hereby, DENIED.
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. Petitioner is expressly warned of the new time limitation for the filing of federal habeas corpus petitions. 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. 2000). 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, however as to challenges which arise after the conviction is final, the limitation period commences when the factual predicate of the claims could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(d) (West Supp. 2000). 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. 2000). Also, under limited circumstances, a petitioner may contend that he is entitled to have the limitation period equitably tolled. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), citing Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) and Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).
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.