Opinion
NO. 4:02-CV-0863-A
February 11, 2003
ORDER
Came on for consideration the above-captioned action wherein Michael Kessinger is petitioner and Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On January 21, 2003, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by February 11, 2003. By order signed February 3, 2003, the court granted petitioner an extension of time until 4:30 p.m. on February 28, 2003, in which to file his objections. On February 10, 2003, petitioner filed his written objections. Respondent has not made any further response. In accordance with 28 U.S.C. § 636 (b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987)
Petitioner objects to the Magistrate Judge's finding that his petition was not timely filed. The Magistrate Judge correctly noted that the limitations period began to run thirty days after entry of the trial court's judgment. Petitioner argues that the judgment did not become final until forty-five days after his conviction because Texas Rule of Appellate Procedure 26.3 says that the appellate court may extend the time to file a notice of appeal if the notice is filed within fifteen days after the deadline. Petitioner's argument would render Rule 26.2 of the Texas Rules of Appellate Procedure a nullity. The court further finds that equitable tolling should not be applied since petitioner had waived his right to appeal as part of a plea bargain process. The Magistrate Judge has adequately addressed all of the issues raised by petitioner. No further discussion is warranted.
The court accepts the findings, conclusions and recommendation of the Magistrate Judge and ORDERS that the petition in this action be, and is hereby, dismissed as untimely.
FINAL JUDGMENT
In accordance with the court's order of even date herewith,
The court ORDERS, ADJUDGES, and DECREES that the petition of Michael Kessinger under 28 U.S.C. § 2254 be, and is hereby, dismissed as untimely.