Opinion
2:98-CV-0194
September 12, 2001
Came this day for consideration the petition for a writ of habeas corpus filed by petitioner DENNIS HOOD. On July 10, 2001, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending therein that respondent's motion to dismiss for lack of jurisdiction be granted and that petitioner's application for a writ of habeas corpus be denied. Petitioner filed objections to the Magistrate Judge's Report and Recommendation on July 19, 2001.
The undersigned United States District Judge has made an independent examination of the record in this case and has examined the Report and Recommendation of the Magistrate Judge, as well as the objections filed by petitioner. The undersigned finds that from the onset of this proceeding, petitioner's challenges were moot due the state appellate court's reversal of the conviction he challenges in this proceeding. As reflected in the Report and Recommendation, instead of dismissing petitioner's application, the Magistrate Judge liberally construed petitioner's allegation to be that his custody was being unconstitutionally affected by an invalid sentence. As a result of the Magistrate Judge's interpretation of petitioner's claims, petitioner's reversed conviction was removed from his TDCJ record. It is further noted that petitioner's original petition did not include challenges to the revocation of parole on his 1983 conviction, nor has petitioner properly challenged the reindictment for the offense which was the subject of the reversed conviction. All appropriate relief had been afforded to petitioner, and neither discovery or an evidentiary hearing were necessary in this cause. The District Judge is of the opinion petitioner's objections should be, and hereby are, OVERRULED. The District Judge is of the further opinion that the Magistrate Judge's Report and Recommendation should be, and hereby is, ADOPTED. Accordingly, respondent's motion to dismiss for lack of jurisdiction is GRANTED, and the petition for a writ of habeas corpus filed by petitioner is DENIED.
In his objections, petitioner contends he delivered his response to an officer for mailing on January 3, 2001, even though such response was not received by this Court until January 24, 2001. Petitioner does not support this allegation with any evidence. Nonetheless, the Magistrate Judge considered petitioner's response in his Report and Recommendation as has the undersigned in examining the record.
Although he has been reindicted, it appears petitioner has not yet been tried on such new indictment.
LET JUDGMENT BE ENTERED ACCORDINGLY.
IT IS SO ORDERED.