Briley v. United States of America

Filing 9

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Report of the Magistrate Judge 7 is ADOPTED as the opinion of the District Court. The application for the writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 02/03/14. (mll, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION JOHN BRILEY § v. § UNITED STATES OF AMERICA § CIVIL ACTION NO. 6:13cv954 MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Petitioner John Briley, a former inmate of the Van Zandt County Jail proceeding pro se, filed this application for the writ of habeas corpus complaining of the legality of his confinement. 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. On December 13, 2013, the Magistrate Judge ordered Briley to pay the statutory filing fee or to file an application for leave to proceed in forma pauperis accompanied by a certified inmate trust account data sheet, as required by 28 U.S.C. §1915(a)(2). The Magistrate Judge also directed that Briley file an amended petition setting out his grounds for relief and the facts supporting such grounds. These orders were returned as undeliverable with the notation that Briley had been released on December 13. To date, Briley has not notified the Court of his present mailing address or current whereabouts. On January 2, 2014, the Magistrate Judge issued a Report recommending that the application for habeas corpus relief be dismissed without prejudice for failure to prosecute. A copy of this Report was sent to Briley 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 1 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 It is accordingly . ORDERED that the Report of the Magistrate Judge (docket no. 7) 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 WITHOUT PREJUDICE. Finally, it is ORDERED that any and all motions which may be pending in this action are hereby DENIED. It is SO ORDERED. SIGNED this 3rd day of February, 2014. ____________________________________ MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE 2

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