IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION BARNEY DWAYNE EBEY, #02155147 § § VS. § CIVIL ACTION NO. 4:19cv259 § DIRECTOR, TDCJ-CID § ORDER OF DISMISSAL The above-entitled and numbered civil action was referred to United States Magistrate Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that the petition for writ of habeas corpus should be denied and dismissed with prejudice. Petitioner has not filed any objections within the time permitted for objections. Respondent filed objections (Dkt. # 46). Respondent objected to the Magistrate Judge’s finding that Petitioner’s claims are timely despite Petitioner’s valid waiver of his right to appeal his conviction. Respondent reasserts that Petitioner, “who expressly waived his right to appeal pursuant to a plea deal, had one year from the date his judgment was entered, absent any statutory tolling” (Dkt. # 46, p. 2). Respondent wishes to preserve this issue for appeal should an appeal be sought, noting the District Courts are split on the issue regarding when a judgment becomes final when a petitioner expressly waives his right to appeal, and that the issue has been raised in a case currently pending before the Fifth Circuit Court of Appeals. See Trevino v. Lumpkin, CIV.A. SA-19-CA-0352-DAE,

(W.D. Tex. May 29, 2020), appeal docketed, No. 20-50535 (5th Cir. June 30, 2020). The Report of the Magistrate Judge, which contains proposed findings of fact and recommendations for the disposition of such action, has been presented for consideration. Having made a de novo review of the objections raised by the Respondent to the Report, the Court concludes that the findings and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court. It is accordingly ORDERED the petition for a writ of habeas corpus is DENIED and the

case is DISMISSED with prejudice. It is further ORDERED that Petitioner be DENIED a certificate of appealability sua sponte. It is further ORDERED that all motions not previously ruled on are hereby DENIED.