Opinion
CIVIL ACTION NO. 4:03-CV-852-Y
January 28, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Raymond Lee Rucker under 28 U.S.C. § 2254, 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 amended findings, conclusions, and recommendation of the United States Magistrate Judge filed on January 8, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on January 23, 2004.
The Court, after de novo review, finds and determines that Rucker's objections must be overruled, 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, and as set forth herein.
In his written objections to the magistrate judge's report and recommendation that this petition be deemed time-barred, Rucker argues that he did not know, at the time of his voluntary dismissal of his previous petition under 28 U.S.C. § 2254, that he would still be subject to the one-year limitation on filing such a petition. But in a ruling in his prior suit, the magistrate judge expressly warned Rucker of the one-year limitation and "cautioned [him] to be aware of the time limitations for habeas corpus petitions." Also, as noted by the magistrate judge, even if Rucker were to be afforded equitable tolling for the time he pursued the prior federal petition and the subsequent state writ application, this petition would still be untimely. Rucker's objections are overruled.
See Rucker v. Cockrell, No. 4:01-CV-765-A, 2002 WL 737148, at *2 (N.D.Tex. April 23, 2002). The Court takes judicial notice of the records of this the Fort Worth division of this Court.
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 Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.