Salcedo v. Lumpkin-Director TDCJ-CID

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. Petitioner's petition for habeas corpus is hereby DISMISSED with prejudice as untimely. The Court DENIES a certificate of appealability. All pending motions are DENIED as MOOT. Signed by District Judge Jeremy D. Kernodle on 6/4/2021. (efarris, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION VICTOR A. SALCEDO, #1986747, Petitioner, v. BOBBY LUMPKIN, DIRECTOR TDCJ, Respondent. § § § § § § § § § Case No. 6:21-cv-038-JDK-JDL ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Petitioner Victor A. Salcedo, a Texas Department of Criminal Justice prisoner proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Texas. The case was transferred to this Court for proper venue and was referred to United States Magistrate Judge, John D. Love, for findings of fact, conclusions of law, and recommendations for the disposition of the case. Docket Nos. 4, 7. On April 29, 2021, Judge Love issued a Report recommending that the petition be dismissed with prejudice as barred by the applicable statute of limitations and that a certificate of appealability be denied. Docket No. 15 at 5. A copy of this Report was sent to Plaintiff, and Plaintiff acknowledged receipt of the Report on May 10, 2021. Docket No. 16. This Court reviews the findings and conclusions of the Magistrate Judge de novo only if a party objects within fourteen days 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. 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 Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). 1 Here, Petitioner did not object in the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 his 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. 15) as the findings of this Court. Petitioner’s petition for habeas corpus is hereby DISMISSED with prejudice as untimely. The Court DENIES a certificate of appealability. All pending motions are DENIED as MOOT. So ORDERED and SIGNED this 4th day of June, 2021. ___________________________________ JEREMY D. KERNODLE UNITED STATES DISTRICT JUDGE 2

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