Opinion
MISC. ACTION NO. M-18-01016
10-10-2018
ERIC AVILA, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Divison.
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Petitioner Eric Avila's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was referred to the Magistrate Court for a report and recommendation. On September 17, 2018, the Magistrate Court issued an Amended Report and Recommendation, recommending that Petitioner's § 2254 petition be dismissed without prejudice and a certificate of appealability be denied. The time for filing objections has passed and no objections have been filed.
Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Amended Report and Recommendation for clear error. Finding no clear error, the Court adopts the Amended Report and Recommendation in its entirety. Accordingly, it is hereby ORDERED that Petitioner's § 2254 petition is DISMISSED without prejudice, and a Certificate of Appealability is DENIED.
As noted by the Fifth Circuit, "[t]he advisory committee's note to Rule 72(b) states that, '[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' " Douglas v. United States Service Auto. Ass'n, 79 F.3d 145, 1420 (5th Cir. 1996) (quoting Fed. R. Civ. P. 72(b) advisory committee's note (1983)) superceded by statute on other grounds by 28 U.S.C. § 636(b)(1), as stated in ACS Recovery Servs., Inc. v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n. 5 (5th Cir. April 2, 2012). --------
IT IS SO ORDERED.
DONE at McAllen, Texas, this 10th day of October, 2018.
/s/_________
Micaela Alvarez
United States District Judge