Opinion
Civil Action 1:22-CV-115
03-01-2023
RICKEY EDWARD LEVI, Petitioner, v. BOBBY LUMPKIN, Respondent.
ORDER
FERNANDO RODRIGUEZ, JR. UNITED STATES DISTRICT JUDGE
In September 2022, Petitioner Rickey Edward Levi filed a Petition for Writ of Habeas Corpus (Doc. 1). Levi is a state prisoner and alleges he has been denied credit for time served. (Id.) The Magistrate Judge recommends that the petition be dismissed for failure to exhaust state remedies. (R&R, Doc. 23) No party filed objections to the Report and Recommendation, and the Court finds no plain error within it.
After the Magistrate Judge issued the Report and Recommendation, Levi requested additional time to file objections so that he could include “the Fileing [sic] of a 1107-, time resolution,” which presumably refers to a writ of habeas corpus that individuals file in Texas state courts under Article 11.07 of the Texas Code of Criminal Procedure. (Motion, Doc. 27) The Court granted Levi additional time, but cautioned that “his Motion appears to lend weight to the Report and Recommendation's conclusion that Levi has failed to exhaust state remedies before filing this lawsuit.” (Order, Doc. 28) Levi now requests another extension, referencing proceedings that he appears to have initiated in Texas state courts. (Motion, Doc. 31) The Court denies the request, again finding that the grounds for Levi's request demonstrate that he has not exhausted his available state remedies. Because this dismissal is without prejudice, Levi will be able to reassert his claim, if he so chooses, after he exhausts the available state remedies.
As a result, the Court ADOPTS the Report and Recommendation (Doc. 23). It is:
ORDERED that Petitioner Rickey Edward Levi's Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is directed to close this matter.