Cantu v. Stephens

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 12 Report and Recommendations. Certificate of Appealability is DENIED. (Signed by Judge Randy Crane) Parties notified.(jengonzalez, 7)

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United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION ANDRES ENRIQUE CANTU Petitioner VS. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C.I.D. Respondents. March 23, 2017 David J. Bradley, Clerk § § § § CIVIL ACTION NO. 7:15-CV-555 § § § § ORDER ADOPTING IN PART MAGISTRATE COURT’S REPORT AND RECOMMENDATION Pending before the Court is Petitioner’s application to vacate, set aside, or correct sentence pursuant to 28 U.S.C. ' 2254, which motion had been referred to the Magistrate Court for a report and recommendation. On February 15, 2017, the Magistrate Court issued the Report and Recommendation, recommending that Respondent’s motion for Summary Judgment (Dkt. Entry No. 10) be granted and that Petitioner’s section 2254 motion be dismissed with prejudice as timebarred. Also pending before the Court are Petitioner’s and Respondents objections to the Report and Recommendations. Pursuant to Federal Rule of Civil Procedure 72(b), the Court has conducted a de novo review of the Report and Recommendation. Finding no clear erroneous error, the Court adopts the Report and Recommendation in its entirety on the issue of the time barred claims. Accordingly, Petitioner’s section 2254 claims are DISMISSED with prejudice as time-barred. However, this Court concludes that jurists of reason would not find the denial of equitable tolling debatable and therefore DENIES a Certificate of Appealability. SO ORDERED this 21st day of March, 2017, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge 2/2

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