Mendoza v. Director, TDCJ-CID
ORDER ADOPTING 9 Report and Recommendations. The application for writ of habeas corpus is hereby DISMISSED with prejudice. Petitioner Fabian Mendoza is DENIED a certificate of appealability sua sponte. Any and all other motions which may be pending in this civil action are DENIED. Signed by Judge Leonard Davis on 09/10/12. cc: petr & resp 9-11-12(mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 6:12cv96
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Fabian Mendoza, 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 during his confinement in the Texas Department of Criminal Justice, Correctional
Institutions Division. 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.
The Respondent was ordered to answer the petition and did so. In his answer, the
Respondent asserted that Mendoza had failed to exhaust his state remedies and that Mendoza had
failed to show the deprivation of a constitutionally protected liberty interest. After review of the
pleadings, the Magistrate Judge issued a Report recommending that the petition be dismissed. The
Magistrate Judge concluded that Mendoza had not exhausted his available state remedies and so his
claims were procedurally barred, and that these claims lacked merit in any event because the
punishments imposed upon Mendoza did not implicate any constitutionally protected liberty
Mendoza received a copy of the Magistrate Judge’s Report on August 17, 2012, but filed no
objections thereto; 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 proposed 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 reviewed the pleadings in this cause and the Report of the Magistrate Judge.
Upon such review, the Court has determined that the Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243
(1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is
“clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 9) 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 hereby
DISMISSED with prejudice. It is further
ORDERED that the Petitioner Fabian Mendoza is hereby DENIED a certificate of
appealability sua sponte. Finally, it is
ORDERED that any and all other motions which may be pending in this civil action are
So ORDERED and SIGNED this 10th day of September, 2012.
UNITED STATES DISTRICT JUDGE
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