Rivera v. Davis

Filing 28

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 20 Memorandum and Recommendations. The Court GRANTS 17 Respondent's MOTION for Summary Judgment, OVERRULES 25 Petitioner's objections, DISMISSES Petitioner's habeas action as time-barred, and DENIES Petitioner a Certificate of Appealability. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JUAN REYES RIVERA,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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February 13, 2018
David J. Bradley, Clerk

CIVIL NO. 2:16-CV-537

ORDER
In this habeas-corpus case, the Court has before it Respondent’s Motion for
Summary Judgment (Dkt. No. 17), the July 18, 2017, Memorandum and
Recommendation (“M&R”) of the Magistrate Judge to whom this case was referred
(Dkt. No. 20), and Petitioner’s objections to the M&R (Dkt. No. 25).
On December 23, 2016, Petitioner filed his petition for a writ of habeas
corpus, which was later amended. Dkt. Nos. 1, 15. On June 16, 2017, Respondent
filed a Motion for Summary Judgment, arguing that Petitioner’s habeas petition is
time-barred. Dkt. No. 17. Petitioner did not file a timely response. The Magistrate
Judge considered the merits of Respondent’s Motion for Summary Judgment and on
July 18, 2017, recommended that the Court grant the motion because Petitioner’s
claim is time-barred and not entitled to equitable tolling. Dkt. No. 20. Petitioner
timely filed his objections on September 8, 2017. Dkt. No. 25; see Dkt. No. 23 (order
granting Petitioner an extension to file objections).
Petitioner’s objections include attachments that were not presented to the
Magistrate Judge. The Court disregards these attachments. See Imperium (IP)
Holdings, Inc. v. Apple, Inc., 920 F.Supp.2d 747, 752 (E.D. Tex. 2013) (“. . .
[E]vidence and arguments presented for the first time upon objection to a report
and recommendation need not be considered.”) (citations omitted); Finley v.
Johnson, 243 F.3d 215, 219 n. 3 (5th Cir. 2001) (“We have held that issues raised for

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the first time in objections . . . are not properly before the district judge.”) (citing
United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992)). Furthermore,
Petitioner’s objections are unresponsive and unsupported by law or evidence.
After an independent review of the record and applicable law, this Court
OVERRULES Petitioner’s objections (Dkt. No. 25) and ADOPTS the Magistrate
Judge’s July 18, 2017, M&R (Dkt. No. 20). The Court GRANTS Respondent’s
Motion for Summary Judgment (Dkt. No. 17), DISMISSES Petitioner’s habeas
action as time-barred, and DENIES Petitioner a Certificate of Appealability.
Final Judgment will be entered separately in accordance with Federal Rule of
Civil Procedure 58.
SIGNED this 13th day of February, 2018.
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Hilda Tagle
Senior United States District Judge

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