Howenstine v Livingston

Filing 26

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION to Grant 14 MOTION to Dismiss with Brief in Support, 22 Memorandum and Recommendations. Petitioner is denied a certificate of appealability(Signed by Judge Janis Graham Jack) Parties notified.(srussell, )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION VICTOR WADE HOWENSTINE, Petitioner, VS. RICK THALER, Respondent. § § § § § § § §

CIVIL ACTION NO. C-09-247

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS On February 2, 2010, United States Magistrate Judge Brian L. Owsley signed a Memorandum and Recommendation recommending that petitioner's claims are time-barred and that the petition be dismissed. The Memorandum and Recommendation further recommended that the petitioner be denied a certificate of appealability. On February 16, 2010, respondent filed Objections to the Magistrate's Recommendations, and on February 25, 2010, petitioner filed objections to the Magistrate's Recommendations. Having reviewed the findings of fact and conclusions of law therein, as well as the pleadings on file and petitioner's and respondent's objections, and having made a de novo disposition of those portions of the Magistrate Judge's recommended disposition to which objections were raised, see Koetting v. Thompson, 995 F.2d 37 (5th Cir. 1993), 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.72(b), the Court hereby adopts as its own the findings and conclusions of the Magistrate Judge, subject to the following exception. The Court does not adopt the Magistrate Judge's statements regarding the potential tolling effect of prison grievances that petitioner claims to have filed in this matter. (D.E. 22 at 8.) The Court recognizes the tolling rule with respect to prison grievances as

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announced in Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002), but concludes that it is not applicable in this case. Accordingly, it is ORDERED that petitioner's petition is dismissed. Petitioner is denied a certificate of appealability. The clerk shall enter this order and provide a copy to all parties. SIGNED and ORDERED this 2nd day of March, 2010.

___________________________________ Janis Graham Jack United States District Judge

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