Ebey v. Director, TDCJ-CID

Filing 48

ORDER OF DISMISSAL adopting 45 Report and Recommendation. It is accordingly ORDERED the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. It is further ORDERED that Petitioner be DENIED a certificate of appealability sua sponte. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 1/7/2022. (daj, )

Case 4:19-cv-00259-ALM-KPJ Document 48 Filed 01/07/22 Page 1 of 2 PageID #: 355

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BARNEY DWAYNE EBEY, #02155147
VS.
DIRECTOR, TDCJ-CID

§
§
§
§
§

CIVIL ACTION NO. 4:19cv259

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that the
petition for writ of habeas corpus should be denied and dismissed with prejudice. Petitioner has
not filed any objections within the time permitted for objections.
Respondent filed objections (Dkt. # 46). Respondent objected to the Magistrate Judge’s
finding that Petitioner’s claims are timely despite Petitioner’s valid waiver of his right to appeal
his conviction. Respondent reasserts that Petitioner, “who expressly waived his right to appeal
pursuant to a plea deal, had one year from the date his judgment was entered, absent any
statutory tolling” (Dkt. # 46, p. 2). Respondent wishes to preserve this issue for appeal should
an appeal be sought, noting the District Courts are split on the issue regarding when a
judgment becomes final when a petitioner expressly waives his right to appeal, and that the issue
has been raised in a case currently pending before the Fifth Circuit Court of Appeals. See
Trevino v. Lumpkin, CIV.A. SA-19-CA-0352-DAE, 2020 WL 2812571 (W.D. Tex. May 29,
2020), appeal docketed, No. 20-50535 (5th Cir. June 30, 2020).
The Report of the Magistrate Judge, which contains 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 the Respondent to the Report, the Court

Case 4:19-cv-00259-ALM-KPJ Document 48 Filed 01/07/22 Page 2 of 2 PageID #: 356

concludes that the findings and conclusions of the Magistrate Judge are correct. 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 the petition for a writ of habeas corpus is DENIED and the
case is DISMISSED with prejudice. It is further ORDERED that Petitioner be DENIED a
certificate of appealability sua sponte.
It is further ORDERED that all motions not previously ruled on are hereby DENIED.
SIGNED this 7th day of January, 2022.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

2