Harvey v. Director, TDCJ-CID
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 33 MOTION for Summary Judgment filed by Christopher Dale Harvey. It is accordingly recommended that the motion for summary judgment (docket entry #33) be denied. Signed by Magistrate Judge Don D. Bush on 4/23/2012. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CHRISTOPHER D. HARVEY, #1434901
CIVIL ACTION NO. 4:10cv63
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner confined in the Texas prison system, proceeding pro se, filed the
above-styled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petition was referred for findings of fact, conclusions of law and recommendations for the
disposition of the case.
Motion for Summary Judgment
Petitioner filed a motion for summary judgment (docket entry #33). The Rules Governing
Section 2254 Cases in the United States District Courts provide for the orderly progression of
habeas corpus proceedings. Rule 3 of the Rules Governing Section 2254 Cases in the United States
District Courts provides for the filing of the petition and the payment of the filing fee. Rule 4
provides for a preliminary consideration of the petition by a court. If a petition is not dismissed at
that juncture, Rule 5 then provides that an answer and state records be filed. Subject to the judge’s
authorization, Rule 6 allows for discovery, Rule 7 allows for expanding the record, and Rule 8
allows for an evidentiary hearing. A motion for summary judgment is not a proper method of
adjudicating a petition for a writ of habeas corpus. See Browder v. Director, Ill. Dept. of Correction,
434 U.S. 257, 269, n.14, 98 S. Ct. 556, 563, 54 L. Ed.2d 521 (1978); see also United States v.
Hurley, 2005 WL 1473828 n.5 (N.D. Tex 2005) (Not Reported in F. Supp.2d) (motion for summary
judgment is not proper method for adjudicating a motion pursuant to U.S.C. § 2255).
It is accordingly recommended that the motion for summary judgment (docket entry #33) be
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 23rd day of April, 2012.
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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