Opinion
CIVIL ACTION NO: H-17-0665
04-07-2017
DAMON DOVE, Petitioner, v. LORIE DAVIS, Director of the Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.
MEMORANDUM AND RECOMMENDATION AND ORDER
This petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 has been referred to this magistrate judge for report and recommendation (Dkt. 4). The court recommends the petition be dismissed without prejudice.
Dove filed this petition for writ of habeas corpus on or about February 17, 2017 challenging his 2013 conviction in case number 12-DCR-061181A in the 268th District Court of Fort Bend, County, Texas. A habeas petition challenging this same conviction is currently pending in the United States District Court for the Southern District of Texas under Case No. 4:16cv1341. In addition, another federal habeas petition filed after 16cv1341, Case No. 4:16cv2903, was dismissed without prejudice for failure to secure permission from the Fifth Circuit to file a successive habeas petition as required by 28 U.S.C. § 2244(b). Therefore, the court recommends that Dove's petition be dismissed without prejudice.
The parties have 14 days from service of this Memorandum and Recommendation to file written objections. Failure to file timely objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Rule 8(b) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72.
Signed at Houston, Texas on April 7, 2017.
/s/_________
Stephen Wm Smith
United States Magistrate Judge