Opinion
Civil Action No. 4:04-CV-205-Y.
July 1, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
Before the Court is the petition for writ of habeas corpus under 28 U.S.C. § 2254 of petitioner Terry Laine Damborsky, along with the June 3, 2004, findings, conclusions, and recommendation of the United States Magistrate Judge. The magistrate judge gave the parties until June 24, 2004, to file written objections to the findings, conclusions, and recommendation. As of the date of this order, no written objections have been filed.
The Court has reviewed the pleadings and the record in this case, and has reviewed for clear error the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on June 3, 2004. The Court concludes that the petition for writ of habeas corpus should be dismissed without prejudice 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 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.
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. 2003). 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. See 28 U.S.C. § 2244(d)(1)(d) (West Supp. 2003). 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. 2003).