Welch v. TDCJ-CID

Filing 15

ORDER ADOPTING 10 Report and Recommendations. The petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are hereby DENIED. Signed by Judge Leonard Davis on 09/18/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROBBIE JOE WELCH, #1750692

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:13cv577

ORDER OF DISMISSAL
Petitioner Robbie Joe Welch, an inmate confined in the Texas prison system, proceeding pro
se, filed the above-styled and numbered petition for a writ of habeas corpus challenging his Gregg
County convictions for indecency with a child. The petition was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and Recommendation concluding that the petition
for a writ of habeas corpus should be dismissed as time-barred.
The Petitioner has filed objections (docket entry #13) and a motion to recuse Magistrate
Judge Mitchell (docket entry #14). He stressed that he consented to Magistrate Judge Judith K.
Guthrie presiding over the case and argued that Magistrate Judge Mitchell is not a judge. However,
Magistrate Judge Guthrie has retired and Magistrate Judge Mitchell is her replacement. The
objection lacks merit. He also argued that a limitations defense should be raised by a respondent,
however, the Supreme Court has ruled that a court may sua sponte dismiss a petition as time-barred
upon notice. Day v. McDonough, 547 U.S. 198, 210 (2006). The Petitioner was provided the
requisite notice, and the objection lacks merit. Finally, the Petitioner argued that he is entitled to
equitable tolling. He disputed the conclusion that he was not diligent in pursuing his rights.
However, he is not entitled to equitable tolling for reasons explained in the Report and
Recommendation. The petition is time-barred.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by the Petitioner to the Report, the Court is of the
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opinion that the findings and conclusions of the Magistrate Judge are correct and the objections of
the Petitioner are without merit. 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 that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously
ruled on are hereby DENIED.
So ORDERED and SIGNED this 18th day of September, 2013.

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LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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