Opinion
CIVIL ACTION NO. 7:18-CV-306
01-07-2019
CHRISTOPHER NEAL SMITH v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Petitioner Christopher Neal Smith's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which had been referred to the Magistrate Court for a report and recommendation. On October 11, 2018, the Magistrate Court issued the Report and Recommendation, recommending that Petitioner's § 2254 petition be DISMISSED without prejudice for failure to exhaust and a certificate of appealability be DENIED. The time for filing objections has passed, and no objections have been filed.
Pursuant to Federal Rule of Civil Procedure 72(b), the Court has reviewed the Report and Recommendation for clear error. Finding no clear error, the Court adopts the Report and Recommendation in its entirety. Accordingly, it is hereby ORDERED that Petitioner's § 2254 petition is DISMISSED without prejudice and a Certificate of Appealability is DENIED.
As noted by the Fifth Circuit, "[t]he advisory committee's note to Rule 72(b) states that, '[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' " Douglas v. United States Service Auto. Ass'n, 79 F.3d 145, 1420 (5th Cir. 1996) (quoting Fed. R. Civ. P. 72(b) advisory committee's note (1983)) superceded by statute on other grounds by 28 U.S.C. § 636(b)(1), as stated in ACS Recovery Servs., Inc. v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n. 5 (5th Cir. April 2, 2012). --------
IT IS SO ORDERED.
SO ORDERED this 7th day of January, 2019, at McAllen, Texas.
/s/_________
Randy Crane
United States District Judge