Harvey v. Director, TDCJ-CID

Filing 35

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, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION CHRISTOPHER D. HARVEY, #1434901 § VS. § DIRECTOR, TDCJ-CID § 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). 1 Recommendation It is accordingly recommended that the motion for summary judgment (docket entry #33) be denied. 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 2

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