Opinion
Civil Action 2:22-CV-00210
05-09-2023
JOHN F. HAWKINS, Petitioner, v. BOBBY LUMPKIN, Respondent.
ORDER ADOPTING MEMORANDUM & RECOMMENDATION
DAVID'S MORALES, UNITED STATES DISTRICT JUDGE
Before the Court is Magistrate Judge Mitchel Neurock's Memorandum and Recommendation (“M&R”). (D.E. 8). The M&R recommends that the Court construe Petitioner's Rule 60(b) motion as a petition for habeas relief pursuant to 28 U.S.C. § 2254 and dismiss it without prejudice to Petitioner obtaining authorization from the Fifth Circuit to file a petition in the district court. (D.E.l). The M&R additionally recommends the Court deny Petitioner's motion for appointment of counsel. (D.E. 2). The M&R further recommends the Court deny Petitioner a certificate of appealability.
The parties were provided proper notice of, and the opportunity to object to, the Magistrate Judge's M&R. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); General Order No. 2002-13. No objection has been filed. When no timely objection has been filed, the district court need only determine whether the Magistrate Judge's M&R is clearly erroneous or contrary to law. United States v. Wilson, 'OWA F.2d 1219, 1221 (5th Cir. 1989) (per curiam); Badaiki v. Schlumberger Holdings Corp., 512 F.Supp.3d 741, 743M4 (S.D. Tex. 2021) (Eskridge, J.).
Having reviewed the proposed findings and conclusions of the Magistrate Judge, the filings of the parties, the record, and the applicable law, and finding that the M&R is not clearly erroneous or contrary to law, the Court ADOPTS the M&R in its entirety. (D.E. 8). Accordingly, the Court construes Petitioner's Rule 60(b) motion, (D.E. 1), as a petition for habeas relief pursuant to 28 U.S.C. § 2254. The Court DENIES Petitioner's habeas petition without prejudice to Petitioner obtaining authorization form the Fifth Circuit to file a petition in the district court. (D.E. 1). The Court additionally DENIES Petitioner's motion for appointment of counsel. (D.E. 2). Petitioner is DENIED a certificate of appealability.
SO ORDERED.