Opinion
2:02-CV-0095
November 22, 2002
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On April 1, 2002, petitioner JAMES TERRELL DAVIS filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody wherein he appears to challenge the manner in which respondent is calculating the time petitioner is serving on a 5-year sentence assessed out of the 183rd District Court, Harris County, Texas, upon his conviction for aggravated sexual assault of a child. On August 19, 2002 petitioner filed a document entitled Petitioner's Request for Dismissal/Withdrawal. In such pleading, petitioner requested the Court to dismiss his habeas application with or without prejudice.
On May 13, 2002, respondent Cockrell filed her answer to petitioner's habeas application and on August 23, 2002, respondent filed a Memorandum in Opposition to Davis's Motion for Voluntary Dismissal. Respondent requests the Court not dismiss the petition but address the cause on the merits or alternatively, dismiss the petition with prejudice. Petitioner, on September 9, 2002, filed his response.
Petitioner is correct that his original motion requested dismissal with or without prejudice. As a practical consideration, even if the application were dismissed without prejudice, petitioner would be time barred from seeking relief in the future. In any event, since petitioner has now agreed the dismissal be with prejudice, the undersigned recommends petitioner's application be DISMISSED with prejudice.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus filed by petitioner JAMES TERRELL DAVIS be DISMISSED with prejudice.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party may object to this Report and Recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal, the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).