Opinion
NO. 4:04-CV-120-A.
July 21, 2004
ORDER
Came on for consideration the above-captioned action wherein Keith D. Barbour is petitioner and Douglas Dretke, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On June 15, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by July 6, 2004. By order signed July 6, 2004, the court granted petitioner an extension of time until July 21, 2004, in which to file his written objections. On July 19, 2004, petitioner filed his objections. Respondent has not made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Petitioner objects to the magistrate judge's finding that his petition in this action is untimely. Petitioner admits that limitations began to run when his conviction became final on December 18, 2001. He argues that he is entitled to equitable tolling for the period of time that he was unaware that the Court of Criminal Appeals of Texas had refused his petitions for discretionary review. Though the petitions were refused September 19, 2001, petitioner claims that his attorney did not notify him of that fact until June 2002. The letters attached as exhibits to petitioner's objection belie this allegation. Specifically, Exhibit 1-A reflects that on March 25, 2002, petitioner was aware of the refusal of his petitions for discretionary review. Further, Exhibit 1-B reflects that petitioner's attorney mailed him a copy of the notice of refusal in September 2001. Though the delay in receiving notice, if there was one, might explain the delay in filing his state habeas application, it does not explain why petitioner waited almost one year after his state habeas application was denied before filing his federal habeas corpus petition.
The court accepts the proposed findings, conclusions and recommendation of the United States Magistrate Judge, and ORDERS that the petition in this action be, and is hereby, dismissed as untimely.