Smith v. United States of America

Filing 33

MEMORANDUM ORDER adopting 26 Report and Recommendation and denying 6 Motion to Dismiss as barred by limitations. Respondent is given 30 days to file a response on the merits showing cause why relief should not be granted. Signed by Judge Richard A. Schell on 1/7/10. (tkd, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION JOSEPH F. SMITH VS. UNITED STATES OF AMERICA § § § CIVIL ACTION NO. 1:06cv597

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Movant Joseph F. Smith, a federal prisoner, proceeding pro se, brought this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The court referred this matter to the Honorable Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for

consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends that the respondent's motion to dismiss as barred by limitations be denied. The court has received and considered the Report and

Recommendation of United States Magistrate Judge filed pursuant to such referral, along with the record, pleadings and all available evidence. No objections to the Report and Recommendation of United States Magistrate Judge were filed by the parties. ORDER Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. It is therefore

ORDERED that the respondent shall, within thirty (30) days from the date of this order, file a response on the merits showing

cause why relief should not be granted. The response shall address movant's original motion to vacate, set aside or correct sentence, as well his amended complaint to the extent it was granted.

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SIGNED this the 7th day of January, 2010.

_______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE

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