Weatherly v. Davis

UNITED STATES DISTRICT COURT October 20, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk VICTORIA DIVISION

ROHN MICHAEL WEATHERLY, §

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Petitioner, §

§ v. § Civil Action No. 6:20-CV-00054 §

LORIE DAVIS and BOBBY LUMPKIN, §

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Respondents. §

ORDER ACCEPTING MEMORANDUM AND RECOMMENDATION

Pending before the Court is the August 13, 2021 Memorandum and Recommendation (“M&R”) signed by Magistrate Judge Julie K. Hampton. (Dkt. No. 35). In the M&R, Magistrate Judge Hampton recommends that the Court (1) grant Respondent Bobby Lumpkin’s Motion for Summary Judgment, (Dkt. No. 31); (2) deny pro se Petitioner Rohn Michael Weatherly’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, (Dkt. No. 1); and (3) deny a certificate of appealability. Weatherly did not file a response to Lumpkin’s Motion for Summary Judgment.

The Parties were provided proper notice and the opportunity to object to the M&R. See 28 U.S.C. § 636(b)(1). No party filed an objection. As a result, review is straightforward: plain error.1 Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005).

1 The comment to Rule 72 of the Federal Rules of Civil Procedure states that Rule 72 is inapplicable in the habeas corpus context. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; accord Nara v. Frank, 488 F.3d 187, 195 (3d Cir. 2007). Rather, Rule 8 of the rules governing AEDPA cases provides instructions on the timely filing of objections that, in relevant part, mirror 28 U.S.C. § 636(b)(1)(C). Compare Rule 8, Rules Governing Section 2254 Cases (“Within 14 days after being served, a party may file objections as provided by local court rule. (continue) No plain error appears. Accordingly, the Court ACCEPTS the M&R as the Court’s Memorandum Opinion and Order. The Court GRANTS Respondent Bobby Lumpkin’s Motion for Summary Judgment. (Dkt. No. 31). The Court DISMISSES WITH PREJUDICE Petitioner Rohn Michael Weatherly’s Petition for Writ of Habeas Corpus. (Dkt. No. 1). Finally, the Court DENIES a certificate of appealability.

It is SO ORDERED.

Signed on October 19, 2021.

DREW B. TIPTON UNITED STATES DISTRICT JUDGE The judge must determine de novo any proposed finding or recommendation to which objection is made.”) with 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). Thus, this Court considers Rule 8, Section 636(b)(1)(C), and Fifth Circuit precedent in weighing the effect of a failure to timely object to an M&R addressing a habeas petition.