Stone v. Director, TDCJ-CID
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, and Entering Final Judgment. ORDERED that the application for the writ of habeas corpus is DISMISSED without prejudice. Signed by Judge Michael H. Schneider on 6/14/2011. (gsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
TRAVIS CLEO STONE III
§
v.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 6:10cv462
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Travis Stone, proceeding pro se, filed this application for the writ of
habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. This Court
ordered that the matter 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.
Stone was convicted of possession of chemicals with intent to manufacture a
controlled substance, receiving a sentence of 32 years in prison. His conviction was affirmed by the
Twelfth Judicial Court of Appeals on September 10, 2008, and discretionary review was denied by
the Texas Court of Criminal Appeals on March 11, 2009. Stone also sought state habeas corpus
relief which was denied by the Court of Criminal Appeals.
The Magistrate Judge ordered the Respondent to answer Stone’s petition, and the
Respondent filed a motion to dismiss. This motion asserted that Stone has filed a petition for federal
habeas corpus relief in the U.S. District Court for the Western District of Texas, which in part
challenges the same conviction at issue in the present case. Stone v. Thaler, civil action no.
1:10cv589 (W.D.Tex.). On April 1, 2011, U.S. Magistrate Judge Robert Pitman entered a Report
in that case, recommending that the petition be denied. This Report noted that Stone “attacks the
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validity of his convictions and sentences in five issues in twenty-two grounds for relief,”
encompassing challenges to Stone’s conviction for possession of chemicals with intent to
manufacture a controlled substance as well as another conviction, for arson with bodily injury; Stone
received both convictions in the same proceeding. As of June 14, 2011, Stone had not yet filed
objections to Magistrate Judge Pitman’s Report, and the case was still pending in the Western
District of Texas.
Stone did not file a response, in the present case, to the Respondent’s assertion that
his case in the Eastern District should be dismissed as successive. After review of the pleadings, the
Magistrate Judge issued a Report on May 10, 2011, recommending that the present case be dismissed
as successive. The Magistrate Judge observed that Stone’s challenges to his conviction in the
present case are or could have been raised in his earlier petition, which is pending in the Western
District. Thus, the Magistrate Judge reasoned, the present petition is successive, and Stone has not
shown that he has obtained leave from the Fifth Circuit to file a second or successive petition, as
required by 28 U.S.C. §2244(b)(3). The Magistrate Judge thus concluded that the Respondent’s
motion to dismiss should be granted.
A copy of this Report was sent to Stone 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 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 carefully reviewed the pleadings in this cause and the Report of the
Magistrate Judge. Upon such review, the Court has concluded that the Report of the Magistrate
Judge 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
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ORDERED that the above-styled application for the writ of habeas corpus be and
hereby is DISMISSED without prejudice. Stone may refile his petition at such time as he obtains
leave from the Fifth Circuit Court of Appeals to file a second or successive petition. He may not
refile this petition without first obtaining such leave, and the dismissal of this petition shall have no
effect upon his right to seek such leave.
.
ORDERED that the Petitioner Matthew Smith is hereby DENIED a certificate of
appealability sua sponte. This denial refers solely to an appeal of this case and shall have no effect
upon Stone’s right to seek permission to file a successive petition, nor upon his right to pursue such
petition once permission is granted. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are
hereby DENIED.
SIGNED this 14th day of June, 2011.
____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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