Chiodo v. Thaler

Filing 26

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, for 22 Report and Recommendation. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusion s of the Court. It is accordingly ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Richard A. Schell on 8/17/2016. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CHARLES NICK CHIODO, JR., #01358206
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:10cv74

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Don D. Bush, who issued a Report and Recommendation concluding that the petition for a writ of
habeas corpus should be dismissed with prejudice. Petitioner filed objections.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
made a de novo review of the objections raised by Petitioner to the Report, the Court concludes that
the findings and conclusions of the Magistrate Judge are correct. An attorney’s negligence, such as
“miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.”
Holland v. Florida, 560 U.S. 631, 651, 130 S. Ct. 2549, 2564, 177 L. Ed.2d 130 (2010). Further,
even complete “attorney abandonment . . . does not, by itself, excuse the petitioner from his duty of
diligence.” Manning v. Epps, 688 F.3d 177, 185 n. 2 (5th Cir. 2012). Petitioner fails to show that
state action prevented him from filing a timely protective federal petition and seeking a stay.
Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. A certificate of appealability is DENIED. It is further
ORDERED that all motions not previously ruled on are hereby DENIED.

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SIGNED this the 17th day of August, 2016.

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RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE