Opinion
CIVIL ACTION NO. 4:01-CV-765-A
April 1, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, § 2254.
B. PARTIES
Petitioner Raymond Lee Rucker, TDCJ-ID #887237, is incarcerated in the McConnell Unit of the Texas Department of Criminal Justice, Institutional Division in Beeville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On September 13, 2001, Rucker filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, challenging his conviction as unlawful. A show cause order was entered on October 3, 2001, directing Cockrell to answer Rucker's petition for writ of habeas corpus. On November 13, 2001, Cockrell filed her answer. On March 14, 2002, Rucker filed with this court a pleading entitled, "Motion to Dismiss Pending 28 U.S.C. § 2241, 2254 Without Prejudice," asking the court to dismiss his petition for writ of habeas corpus. In essence, Rucker states that he has learned of additional claims he wishes to pursue in this federal habeas corpus proceeding but has not yet exhausted his state court remedies as to those claims. Rucker apparently desires a voluntary dismissal without prejudice so that he can return to state court to exhaust his state court remedies as to any and all claims that he may have with regard to his conviction for robbery.
Rucker's motion for voluntary dismissal without prejudice should be granted and the case dismissed. This court reminds Rucker, however, that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. 28 U.S.C. § 2244 (d). Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244 (d)(2). Thus, the Petitioner is hereby cautioned to be aware of the time limitation for habeas corpus petitions.
II. RECOMMENDATION
It is therefore recommended that Rucker's motion to dismiss be granted and this case be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar which may apply.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until April 22, 2002. Failure to file written objections within the specified time shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Rucker, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Pursuant to Title 28 of the United States Code, § 636, it is hereby ORDERED that each party is granted until April 22, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ORDERED that the above-styled and numbered action previously referred to the United States Magistrate Judge for findings, conclusions, and recommendations, be and hereby is returned to the docket of the United States District Judge.