-JKG Ballard v. Director, TDCJ-CID, No. 6:2010cv00174 - Document 26 (E.D. Tex. 2010)

Court Description: MEMORANDUM ADOPTING REPORT AND RECOMMENDATIONS AND ENTERING FINAL JUDGMENT for 23 Report and Recommendations. ORDERED that the application for writ of habeas corpus is DISMISSED with prejudice, and all motions which may be pending are hereby. Signed by Judge Michael H. Schneider on 10/29/2010. (gsg)

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-JKG Ballard v. Director, TDCJ-CID Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION DODSON LUGENE BALLARD § v. § DIRECTOR, TDCJ-CID § CIVIL ACTION NO. 6:10cv174 (Consolidated with 6:10cv236) MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Petitioner Dodson Ballard, proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. This Court ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. Ballard complained of a 1999 conviction, which became final on October 25, 2000, when the Texas Court of Criminal Appeals denied his petition for discretionary review. He sought state habeas corpus relief, which was denied by the Texas Court of Criminal Appeals on January 2, 2002. Two subsequent state habeas petitions were dismissed as successive, and Ballard signed his federal habeas petition on April 20, 2010. The Respondent has been ordered to answer and has filed a motion to dismiss based upon the expiration of the statute of limitations. Ballard filed a response to the motion to dismiss, and has also filed a “motion to set aside sentence” and a “motion to vacate judgment” following the Respondent’s motion to dismiss, but none of these pleadings address the issue if the statute of limitations. 1 Dockets.Justia.com After review of the pleadings, the Magistrate Judge issued a Report recommending that the motion to dismiss be granted and that the petition be dismissed with prejudice based upon the expiration of the statute of limitations. Ballard had filed objections to this Report; however, these objections appear to focus on the merits of his claims, and make no mention of the statute of limitations. Ballard’s objections are without merit. The Court has conducted a careful de novo review of the pleadings in this cause, including the Report of the Magistrate Judge and the Petitioner’s objections thereto. Upon such de novo review, the Court has concluded that the Magistrate Judge’s Report is correct and that the Petitioner’s objections are without merit. It is accordingly ORDERED that the Petitioner’s objections are overruled and the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further . ORDERED that the above-styled application for the writ of habeas corpus be and hereby is DISMISSED with prejudice. It is further ORDERED that the Petitioner Dodson Ballard is hereby DENIED a certificate of appealability sua sponte. Finally, it is ORDERED that any and all motions which may be pending in this civil action are hereby DENIED. SIGNED this 29th day of October, 2010. ____________________________________ MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE 2

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