Blue v. Davis-Director TDCJ-CID, No. 3:2017cv02896 - Document 12 (N.D. Tex. 2018)

Court Description: Order Accepting 11 Findings and Recommendations on Case re: 3 Petition for Writ of Habeas Corpus. Accordingly, the court denies the Petition and dismisses without prejudice this action for failure to exhaust state remedies. (Ordered by Judge Sam A Lindsay on 9/25/2018) (epm)

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Blue v. Davis-Director TDCJ-CID Doc. 12 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION LAZARUS BLUE, Petitioner, v. LORIE DAVIS, Director, TDCJ-CID, Respondent. § § § § § § § § § Civil Action No. 3:17-CV-2896-L-BT ORDER Before the court is Lazarus Blue’s (“Petitioner”) Petition for Writ of Habeas Corpus (Doc. 3), filed October 20, 2017. No response to the petition was filed. On June 28, 2018, United States Magistrate Judge Rebecca Rutherford entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”), recommending that the court deny the petition for failure to exhaust the petition. No objections to the Report were made. Having reviewed the record in this case, Report, and applicable law, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. As the magistrate judge correctly held, Petitioner failed to exhaust state remedies pursuant to 28 U.S.C. § 2254(b) because he failed to present his claims to the Texas Court of Criminal Appeals in a petition for discretionary review and failed to file an application for writ of habeas corpus in state court. Further, Petitioner has not shown the court that any circumstances exist to render these state remedies ineffective to protect his rights. See 28 U.S.C. § 2254(b)(1)(B)(ii). Accordingly, the court denies the Petition and dismisses without prejudice this action for failure to exhaust state remedies. Order – Page 1 Dockets.Justia.com It is so ordered this 25th day of September, 2018. _________________________________ Sam A. Lindsay United States District Judge Order – Page 2

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