Opinion
CIVIL ACTION NO. 3:02-CV-2418-G
March 25, 2003
ORDER
After making an independent review of the pleadings, files and records in this case, and the findings, conclusions and recommendation of the United States Magistrate Judge, I am of the opinion that the findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and conclusions of the court with the following qualification.
On March 20, 2003, respondent filed her objections to the findings and conclusions of the Magistrate Judge. See Respondent's Objections to the Magistrate Judge's Report and Recommendation with Brief in Support. In those objections, respondent argues that the Magistrate Judge erred by including an additional thirty-eight days in the state post-conviction tolling period to account for a motion for reconsideration petitioner filed with Texas Court of Criminal Appeals. Id. at 2. Respondent makes two arguments in support of that conclusion. First, respondent argues that, "[a]lthough the Court of Criminal Appeals will entertain a motion for reconsideration on its own motion, the Texas Rules of Appellate Procedure prohibit the filing of a motion for rehearing of an order denying state habeas relief." Id. at 3 (citing TEX. R. APP. PROC. 79.2(d) (West 2002)). Respondent therefore concludes that petitioner's motion for reconsideration was improperly filed under Texas law and, consequently, cannot toll the federal habeas corpus limitations period. Id. Second, respondent argues that even if petitioner's motion for reconsideration could toll the federal limitations period, such tolling is nevertheless improper in the instant case because petitioner failed to file the motion within fifteen days after his state habeas relief was denied. Id. at 3-4 (citing TEX. R. APP. PROC. 79.1; Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)). The court, however, need not address this issue because, even including the thirty-eight day period, petitioner has still waited more than one year to file his federal habeas corpus petition. The relief requested by petitioner is therefore barred by the one year limitations period. See 28 U.S.C. § 2244(d)(1).
Accordingly, it is ORDERED that the findings, conclusions and recommendation of the United States Magistrate Judge are ADOPTED and that this action is hereby DISMISSED with prejudice.
JUDGMENT
This action came on for consideration by the Court, and the issues having been duly considered and a decision duly rendered,
It is ORDERED, ADJUDGED and DECREED that:
1. Petitioner's application for writ of habeas corpus is barred by limitations and dismissed with prejudice.
2. The Clerk shall transmit a true copy of this Order and the Order accepting the Findings and Recommendation of the United States Magistrate Judge to all parties.