Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DERRICK HARRIS, 763436, )

Petitioner, )

)

v. ) No. 3:04-CV-800-N

) ECF

NATHANIEL QUARTERMAN, )

Director, TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner’s motion to reopen the time to file an appeal has been referred to the United

States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from

the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge

follow:

FINDINGS AND CONCLUSIONS

The Fifth Circuit Court of Appeals has remanded this action for a determination of the

date Petitioner filed his notice of appeal.

In this § 2254 petition, the District Court entered final judgment on February 24, 2006. 

Therefore, the final day for filing a timely notice of appeal was Monday, March 27, 2006. See

Fed. R. App. P. 26(a)(3). Petitioner’s pro se notice of appeal is dated March 23, 2006, and is file

stamped as received by the District Court on March 30, 2006. The Fifth Circuit Court of 

Appeals has remanded this action to determine whether Petitioner delivered his notice of appeal

 

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to prison officials for mailing on or before March 27, 2006. A prisoner’s pro se notice of appeal

is timely filed if deposited in the institution’s internal mail system on or before the last day for

filing. See Fed. R. App. P. 4(c)(1). 

On October 3, 2006, the Court sent Petitioner a Magistrate Judge’s Questionnaire to

determine the date he delivered his notice of appeal to prison officials for mailing. On October

14, 2006, Petitioner responded that he delivered his notice of appeal to prison officials on March

23, 2006. The Court therefore finds that Petitioner mailed his notice of appeal on March 23,

2006.

RECOMMENDATION

For the foregoing reasons, the undersigned magistrate judge recommends that the District

Court find that Petitioner mailed his notice of appeal on March 23, 2006. 

Signed this 24th day of October, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and recommendations

on Petitioner. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings

and recommendations must file and serve written objections within ten (10) days after being

served with a copy. A party filing objections must specifically identify those findings and

recommendations to which objections are being made. The District Court need not consider

frivolous, conclusory or general objections. The failure to file such written objections to these

proposed findings and recommendations shall bar that party from a de novo determination by the

district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file

written objections to proposed findings and recommendations within ten (10) days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996)(en

banc).

 

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