Wolf v. Dir., TDCJ-CID

Full title: DWIGHT WOLF v. DIRECTOR, TDCJ-CID

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

Date published: Mar 6, 2021

CIVIL ACTION NO. 9:20-CV-10 (E.D. Tex. Mar. 6, 2021)

Opinion

CIVIL ACTION NO. 9:20-CV-10

03-06-2021

DWIGHT WOLF v. DIRECTOR, TDCJ-CID

Ron Clark Senior Judge

**NOT FOR PRINTED PUBLICATION**

MEMORANDUM OPINION AND ORDER PARTIALLY ADOPTING REPORT AND RECOMMENDATION

Petitioner, Dwight Wolf, a prisoner currently confined at the Smith Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends this action be dismissed with prejudice as bared by the statute of limitations (docket entry no. 21).

The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Respondent filed objections to the Report and Recommendation of United States Magistrate Judge (docket entry no. 22). This requires a de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV. P. 72(b).

While Respondent agrees with the ultimate recommendation that the petition be dismissed as time-barred, Respondent objects to the deadline calculated by the Magistrate Judge. Respondent states the deadline appears to be a typographical error. After a careful review of the relevant dates and deadlines in this case, it is clear the deadline of May 7, 2016 outlined in the Report and Recommendation is, in fact, a typographical error. The Magistrate Judge correctly noted that petitioner accrued 348 days of statutory tolling during the pendency of his first and second state application for writ of habeas corpus. As such, petitioner's deadline to file his federal petition for writ of habeas corpus moved to April 20, 2016. Petitioner's federal habeas application filed December 15, 2019 is more than three years too late.

ORDER

Accordingly, Respndent's objections are SUSTAINED. The findings of fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is PARTIALLY ACCEPTED to the extent it recommends dismissing the habeas petition as time-barred. A Final Judgment will be entered in accordance with the recommendations of the Magistrate Judge.

So ORDERED and SIGNED, Mar 06, 2021.

/s/_________

Ron Clark

Senior Judge