Opinion
2:99-CV-0045
September 27, 2002
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING MOTION TO DISMISS FOR FAILURE TO EXHAUST STATE REMEDIES
Came this day for consideration the motion to dismiss for failure to exhaust state remedies filed by respondent Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division. On September 12, 2002, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending therein that such motion be denied without prejudice. Respondent filed objections to the Magistrate Judge's Report and Recommendation on September 20, 2002.
The undersigned United States District Judge has made an independent examination of the record in this case and has examined the Report and Recommendation of the Magistrate Judge, as well as the objections filed by respondent.
It is noted that the Texas courts were given an explicit opportunity to address all petitioner's issues when this Court administratively closed this case and held it in abeyance to allow petitioner to exhaust. The Court of Criminal Appeals declined to hear the case. The Texas courts have been given a fair opportunity to hear the case and this Court is not required to do any more than has been done to provide such an opportunity.
The District Judge is of the opinion respondent's objections should be, and hereby are, OVERRULED. The District Judge is of the further opinion that the Magistrate Judges Report and Recommendation should be, and hereby is, ADOPTED. Accordingly, the motion to dismiss for failure to exhaust state remedies filed by respondent is DENIED without prejudice as set forth in the Report and Recommendation.
IT IS SO ORDERED.