Opinion
NO. 4:03-CV-901-A
January 15, 2004
ORDER
Came on for consideration the above-captioned action wherein Boon Mounivong is petitioner and Douglas Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On December 30, 2003, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by January 20, 2004. On January 15, 2004, petitioner filed his written objections. Respondent has not made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The court notes that the objections are subject to being stricken as they are not accompanied by a certificate of service as required by FED. R. CIV. P. 5(d) showing service on respondent.
In his objection, petitioner maintains that the magistrate judge misdescribed the factual history of the underlying state proceedings. Specifically, he alleges that he filed, on July 9, 2002, a motion for new trial. It appears that petitioner is referring to the motion for new trial filed after his adjudication of guilt on May 30, 2002, and not in connection with the original imposition of deferred adjudication community supervision. Even had such a motion been filed in connection with the original proceeding, it would have been untimely and would not have extended the deadline for seeking habeas relief. Accordingly,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, denied.