April 5, 2005
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED UNDER 28 U.S.C. § 2244(d)
Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner TIMOTHY WAYNE CARTER on November 21, 2004. By his habeas application, petitioner appears to be challenging a 1989 conviction for the offense of robbery out of the 320th Judicial District Court of Potter County, Texas, and the subsequent 1990 revocation of a deferred adjudication related thereto.
See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court). Although the petition is not dated, petitioner submitted a letter along with his petition and dated such letter November 21, 2004. Construing the petition liberally, the Court presumes this date to be the date petitioner submitted his application to prison officials.
Respondent filed his response on April 4, 2005 wherein he fully and accurately briefed the issue of limitations. Respondent is correct in his conclusion that the petitioner's habeas application is time barred. Therefore, it is the opinion of the undersigned United States Magistrate Judge that petitioner's application for a writ of habeas corpus should be DISMISSED as time barred.
For the reasons set forth above, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner TIMOTHY WAYNE CARTER be DISMISSED as time barred.
IV. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.