Pogue v. Director, TDCJ-CID

Filing 16

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JDUGE, for 11 Report and Recommendation. It is accordingly ORDERED that the petition for a writ of habeas corpus is DISMISSED without prejudice as successive. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 2/3/2017. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MICHAEL J. POGUE, #1239400
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:16cv119

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 denied and dismissed without prejudice because it is a successive petition.
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 and the objections of Petitioner are
without merit. In the instant case, the Magistrate Judge concluded that Petitioner’s case was barred
because it was successive to Cause No. 4:07cv464.
Petitioner asserts that he should be able to file a successive petition because his earlier
petition was dismissed without prejudice. However, a review of the docket in Cause No. 4:07cv464
shows that the Magistrate Judge recommended that the case be dismissed with prejudice. (Dkt. #28).
The Final Judgment reflects a dismissal with prejudice. (Dkt. #32). The court specifically adopted
the findings and conclusions of the Magistrate Judge, but improvidently used the words, “without

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prejudice,” in the Order of Dismissal. (Dkt. #31). The Court then granted the Government’s motion
to alter judgment (Dkt. #34) by amending the Order of Dismissal to reflect a dismissal “with
prejudice.” (Dkt. #35). Petitioner’s objections are disingenuous and without merit. The Court hereby
adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the

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court.
It is accordingly ORDERED that the petition for a writ of habeas corpus is DISMISSED
without prejudice as successive.
It is further ORDERED that all motions not previously ruled on are hereby DENIED.

SIGNED this 3rd day of February, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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