Opinion
Civil Action No. 3:04-CV-0801-L.
July 8, 2004
ORDER
This is a pro se civil rights case. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States magistrate judge for proposed findings and recommendation. On June 17, 2004, the Findings, Conclusions and Recommendation of the United States Magistrate Judge were filed, to which Petitioner filed objections on July 2, 2004.
The magistrate judge recommended that Petitioner's petition be dismissed with prejudice as frivolous to the extent she seeks a writ of mandamus against the Texas Court of Criminal Appeals. The magistrate judge further recommended that Petitioner's petition be dismissed for want of jurisdiction to the extent that she requests an extension of time in which to file a federal habeas corpus petition. Petitioner objects to the magistrate judge's findings and recommendation contending that she seeks only to toll the "statute of limitation[s] to file [a petition for writ of] habeas corpus [pursuant to 28 U.S.C.] § 2254. . . ." As the magistrate judge explained in his Findings, Conclusions and Recommendation, Petitioner does not have a habeas action pending; therefore, a motion requesting an extension of time in which to file such an action is, in essence, a request for an advisory opinion regarding whether any subsequently filed habeas action will be time barred. The court cannot issue such an opinion. Petitioner's objections are therefore overruled. Having reviewed the pleadings, file and record in this case, and the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions are correct. The magistrate judge's findings and conclusions are accepted as those of the court. Accordingly, Petitioner's petition is dismissed with prejudice as frivolous to the extent she seeks a writ of mandamus against the Texas Court of Criminal Appeals. Furthermore, Petitioner's petition is dismissed without prejudice for want of jurisdiction to the extent she seeks an extension of time to file a federal habeas corpus petition.