Wendt v. Quarterman

Filing 28

ORDER ADOPTING 26 Report and Recommendations. The application for the writ of habeas corpus is DISMISSED as moot. Petr is denied a certificate of appealability sua sponte. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Leonard Davis on 02/05/10. cc:petr 2-05-10(mll, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION HARVEY WENDT v. DIRECTOR, TDCJ-CID § § § CIVIL ACTION NO. 6:09cv242 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Petitioner Harvey Wendt, proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. §2254 complaining of the legality of prison disciplinary action taken against him. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. The Magistrate Judge ordered the Respondent to answer Wendt's petition and received a copy of the state court records. The Respondent stated that Wendt did not suffer an infringement of any constitutionally protected liberty interests as a result of the disciplinary case and that while an error had been made with respect to Wendt's mandatory supervision release date, this error had now been corrected. The Respondent therefore argued that Wendt's petition be dismissed as moot. On December 18, 2009, the Magistrate Judge issued a Report recommending that the petition be dismissed as moot. The Magistrate Judge also recommended that Wendt be denied a certificate of appealability sua sponte. A copy of this Report was mailed to Wendt at his last known address, return receipt requested, but no objections have been received; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal 1 conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. Upon such review, the Court has determined that the Magistrate Judge's Report is correct. It is accordingly ORDERED that the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further ORDERED that the above-styled application for the writ of habeas corpus is DISMISSED as moot. It is further ORDERED that the Petitioner Harvey Wendt is hereby DENIED a certificate of appealability sua sponte. Finally, it is ORDERED that any and all motions which may be pending in this action are hereby DENIED. So ORDERED and SIGNED this 5th day of February, 2010. __________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE 2

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