Opinion
Civil Action No. 3:03-CV-1694-L
February 26, 2004
ORDER
Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States magistrate judge for proposed findings and recommendation. On February 10, 2004, the Findings, Conclusions and Recommendation of the Magistrate Judge were filed, to which Petitioner filed written objections on February 24, 2004. Petitioner also requests that the court, in the event it overrules his objections, certify the following question to the Fifth Circuit Court of Appeals: Whether an attorney's inaccurate interpretation of the limitation provisions of the AEDPA excuses a state prisoner's failure to timely file a § 2254 petition when any other attorney of sound mind would have not have made such a gross misstatement of the law.
Having reviewed the pleadings, file and record in this case and the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions are correct. Petitioner's objections are overruled, and the magistrate judge's findings and conclusions are accepted as those of the court. Accordingly, Respondent Dreteke's Motion to Dismiss is granted, and Petitioner's "Petition For A Writ of Habeas Corpus By A Person In State Custody" is hereby denied, and this action is dismissed with prejudice as barred by the applicable statute of limitations.
With respect to Petitioner's request that the court certify the above-cited question to the Fifth Circuit, the request is denied; the Fifth Circuit has already determined that an attorney's erroneous interpretation of the limitations provisions of the AEDPA does not excuse a prisoner's failure to timely file a § 2254 petition. See United States v. Griggs, 314 F.3d 796, 799 (5th Cir. 2002) (citing Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002); see also Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002).