Opinion
Civil Action No. 3:04-CV-2465-L.
January 31, 2005
ORDER
This is a habeas case brought under 28 U.S.C. § 2254. 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 January 6, 2005, the Findings and Recommendation of the United States Magistrate Judge ("Report") were filed, to which Petitioner filed no objections.
The magistrate judge recommends that Petitioner's application for writ of habeas corpus be dismissed without prejudice for Petitioner's failure to exhaust state remedies pursuant to 28 U.S.C. § 2254(b). Report at 1. The statute provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). The magistrate judge found that Petitioner has not filed an application for writ of habeas corpus to the Texas Court of Criminal Appeals before seeking relief in federal court; and, therefore, has failed to exhaust his state remedies.
Having reviewed the pleadings, file and record in this case, and the findings of the magistrate judge, the court determines that the findings of the magistrate judge are correct, and they are accepted as those of the court. Petitioner has failed to exhaust his state remedies pursuant to 28 U.S.C. § 2254(b). Accordingly, Petitioner's petition for habeas corpus is hereby denied, and this action is dismissed without prejudice.
It is so ordered.