1Although entitled “Response to Dretke’s Preliminary Response,” because the

document filed by Lane on April 12, 2006, was prepared after he apparently

received the magistrate judge’s report, and since he has not otherwise timely

filed any written objections, the Court will construe that document as written

objections to the report of the magistrate judge. The clerk of Court is directed

to make this change on the docket.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALVIN HENRY LANE, §

Petitioner, §

 §

VS. § CIVIL ACTION NO.4:06-CV-042-Y

 §

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional § 

Institutions Division, §

Respondent. § 

 ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS

 (With special instructions to the clerk of Court)

In this action brought by petitioner Alvin Henry Lane under 28

U.S.C. § 2254, the Court has made an independent review of the

following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on

March 24, 2006; and 

3. The petitioner’s written objections to the proposed

findings, conclusions, and recommendation of the United

States magistrate judge filed on April 12, 2006.1

The Court, after de novo review, concludes that the Petitioner’s objections must be overruled, and that the petition for

writ of habeas corpus should be dismissed with prejudice as timebarred pursuant to 28 U.S.C. § 2244(d)(1)-(2), for the reasons

stated in the magistrate judge's findings and conclusions, and as

set forth herein. 

 

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2Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)(citations omitted).

3TEX. R. APP. P. 68.2(a).

2

In his written objections to the magistrate judge’s report and

recommendation that this petition be deemed time-barred, Lane

contends that his judgment did not become “final” under 28 U.S.C.

§ 2244(d)(1)(A) until the issuance of mandate by the court of

appeals on July 1, 2004. But the Court of Appeals for the Fifth

Circuit has rejected a similar argument: 

We find no reason to look to state law to determine when

a state conviction becomes final for the purposes of §

2244(d)(1)(A). The language of § 2244(d)(1)(A) provides

that a decision becomes final “by the conclusion of

direct review or the expiration of the time for seeking

such review.” We previously held that direct review

includes a petition for writ of certiorari to the Supreme

Court. Therefore, the “conclusion of direct review” is

when the Supreme Court either rejects the petition for

certiorari or rules on its merits. If the conviction does

not become final by the conclusion of direct review, it

becomes final by “the expiration of the time for seeking

such review.” We previously held that this includes the

ninety days allowed for a petition to the Supreme Court

following the entry of judgment by the state court of

last resort. If the defendant stops the appeal process

before that point, the conviction becomes final when the

time for seeking further direct review in the state court

expires.2

In this case, Lane did not continue the appeal process since he did

not file a petition for discretionary review. Thus, his conviction

was final thirty days after the Court of Appeals denied his motion

for rehearing on April 22, 2004.3 The magistrate judge’s

limitations analysis is correct and Lane’s objections are

overruled. 

 

 Case 4:06-cv-00042-Y Document 10 Filed 04/20/06 Page 2 of 3 PageID 56
3

 Therefore, the findings, conclusions, and recommendation of

the magistrate judge are ADOPTED.

Alvin Henry Lane’s petition for writ of habeas corpus is

DISMISSED WITH PREJUDICE.

SIGNED April 20, 2006.

 

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