Killingsworth v. Director, TDCJ-CID

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge 6 as the findings of this Court. This petition for habeas corpus is hereby DENIED and this action is DISMISSED WI TH PREJUDICE. The Court DENIES a certificate of appealability only as to an appeal of this case and without effect on Petitioner's right to seek relief in state court or to again seek relief in federal court if state courts do not grant the relief he seeks. Signed by District Judge Jeremy D. Kernodle on 02/16/21. (mll, )

Case 6:19-cv-00595-JDK-KNM Document 9 Filed 02/16/21 Page 1 of 2 PageID #: 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DUSTAN KILLINGSWORTH,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.

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Case No. 6:19-cv-595-JDK-KNM

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Dustan Killingsworth, an inmate confined within the Texas
Department of Criminal Justice, proceeding pro se, filed this federal petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to
United States Magistrate Judge, the Honorable K. Nicole Mitchell, for findings of
fact, conclusions of law, and recommendations for disposition.
On April 6, 2020, Judge Mitchell issued a Report and Recommendation
recommending that the Court deny the petition and dismiss this case with prejudice
for failure to exhaust state remedies. Judge Mitchell also recommended that a
certificate of appealability be denied. Docket No. 6. A copy of this Report was mailed
to Petitioner.
This Court reviews the findings and conclusions of the Magistrate Judge de
novo only if a party objects within fourteen days of service of the Report and
Recommendation. 28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court
examines the entire record and makes an independent assessment under the law.
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Case 6:19-cv-00595-JDK-KNM Document 9 Filed 02/16/21 Page 2 of 2 PageID #: 26

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc),
superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to
file objections from ten to fourteen days). Here, Petitioner did not object in the
prescribed period. The Court therefore reviews the Magistrate Judge’s findings for
clear error or abuse of discretion and reviews the legal conclusions to determine
whether they are contrary to law. See United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989), cert. denied, 492 U.S. 918 (1989) (holding that, if no objections to a
Magistrate Judge’s Report are filed, the standard of review is “clearly erroneous,
abuse of discretion and contrary to law”).
Having reviewed the Magistrate Judge’s Report and the record in this case,
the Court finds no clear error or abuse of discretion and no conclusions contrary to
law. Accordingly, the Court hereby ADOPTS the Report and Recommendation of the
United States Magistrate Judge (Docket No. 6) as the findings of this Court. This
petition for habeas corpus is hereby DENIED and this action is DISMISSED WITH
PREJUDICE. The Court DENIES a certificate of appealability only as to an appeal
of this case and without effect on Petitioner’s right to seek relief in state court or to
again seek relief in federal court if state courts do not grant the relief he seeks.

So ordered and signed on this
Feb 16, 2021

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