Opinion
Case No. 6:20-cv-284-JDK-JDL
12-07-2020
CORY THOMAS, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Cory Thomas, an inmate proceeding pro se, filed this petition for the writ of habeas corpus challenging the legality of TDCJ's failure to release him on mandatory supervision or provide him with adequate notice concerning the failure to release him. The case was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. The Magistrate Judge issued a Report recommending that the petition be dismissed without prejudice for failure to exhaust his state remedies, as required by 28 U.S.C. § 2254(b). Docket No. 3.
Petitioner objected to the Magistrate Judge's Report arguing that he was denied due process. Docket No. 5. With regard to exhaustion, Petitioner appears to contend that the Texas Court of Criminal Appeals lacks jurisdiction. Id. This is incorrect. See, e.g., Ex parte Carraway, No. WR-46,346-08, 2020 WL 1161809 (Tex. Crim. App. Mar. 11, 2020) (remanding claim of denial of release on mandatory supervision to the trial court for factual findings); Galvan v. Director, TDCJ- CID, No. 9:19-cv-196, 2020 WL 5665102 (E.D. Tex. Aug. 24, 2020) (dismissing federal habeas petition claiming failure to release on mandatory supervision for failure to exhaust state remedies).
Having conducted a careful de novo review of those portions of the Magistrate Judge's proposed findings and recommendations to which the Petitioner objected, the Court has determined that the Report of the Magistrate Judge is correct, and the Petitioner's objections are without merit. See 28 U.S.C. § 636(b)(1) (District Judge shall "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").
Accordingly, the Court hereby OVERRULES Petitioner's objections (Docket No. 5) and ADOPTS the Report of the Magistrate Judge (Docket No. 3) as the opinion of the District Court. It is further ORDERED that this civil action is DISMISSED WITHOUT PREJUDICE. A certificate of appealability is DENIED, with this denial referring solely to an appeal of the present case and having no effect upon Petitioner's right to seek relief in state court or to again seek relief in federal court in the event the state courts do not grant him the relief he seeks. It is further ORDERED that any and all motions which may be pending in this civil action are hereby DENIED as MOOT.
So ORDERED and SIGNED this 7th day of December, 2020.
/s/_________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE