Regalado v. Lumpkin

UNITED STATES DISTRICT COURT September 15, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk MCALLEN DIVISION ROGELIO REGALADO, § § Petitioner, § § VS. § CIVIL ACTION NO. 7:23-CV-0049 § BOBBY LUMPKIN, et al., § § Respondents. § ORDER ADOPTING REPORT AND RECOMMENDATION Before the Court is Petitioner Rogelio Regalado’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which had been referred to the Magistrate Court for a report and recommendation.1 On August 18, 2023, the Magistrate Court issued the Report and Recommendation, recommending that the petition be DENIED, and that Petitioner’s claims be DISMISSED.2 Petitioner also filed a Motion for Summary Judgment and Motion for Expansion of the Record,3 which the Magistrate Judge also recommended be DENIED.4 It was further recommended that a Certificate of Appealability be DENIED.5 Petitioner has filed timely objections to the Magistrate Court’s Report and Recommendation.6 Pursuant to 28 U.S.C. § 636(b)(1)(c), the Court has made a de novo determination of those portions of the report to which objections have been made. As to those portions to which no Dkt. No. 1.

2 Dkt. No. 19.

3 Dkt. Nos. 12 & 17.

4 Dkt. No. 19.

5 Id. Dkt. No. 25. objections have been made, in accordance with Federal Rule of Civil Procedure 72(b), the Court has reviewed the report for clear error.’

Having thus reviewed the record in this case, the parties’ filings, and the applicable law, the Court adopts the Report and Recommendation in its entirety. Accordingly, the petition is DENIED. Petitioner’s claims are DISMISSED, and Petitioner’s Motion for Summary Judgment and Motion for Expansion of the Record are DENIED. Finally, a Certificate of Appealability is DENIED.

IT IS SO ORDERED.

DONE at McAllen, Texas, this 15th day of September 2023.

Wares Micaela Alv Senior United States District Judge T As noted by the Fifth Circuit, “[t]he advisory committee’s note to Rule 72(b) states that, ‘[w]hen no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Douglas v. United States Servs. Auto, Ass’n, 79 F.3d 1415, 1420 (Sth Cir. 1996) (quoting Fed. R. Civ. P. 72(b) advisory committee’s note (1983)), superseded by statute on other grounds by 28 U.S.C. § 636(b)(1), as stated in ACS Recovery Servs., Inc. v. Griffin, No. 11-40446, 2012 WL 1071216, at *7 n. 5 (Sth Cir. April 2, 2012).

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