IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TEXARKANA DIVISION 

RICKEY W. SMITH §

v. § CIVIL ACTION NO. 5:24cv3-RWS-JBB

DIRECTOR, TDCJ-CID §

ORDER

Before the Court is Petitioner Rickey Smith’s application for the writ of habeas corpus under 

28 U.S.C. § 2254 challenging the legality of his confinement. Docket No. 6. The case was referred to 

United States Magistrate Judge Boone Baxter in accordance with 28 U.S.C. § 636. 

On August 30, 2024, the Magistrate Judge issued a Report recommending dismissal of the 

petition without prejudice for failure to exhaust state remedies. Docket No. 12. The Magistrate Judge

further recommended that a certificate of appealability be denied sua sponte, with such denial referring

solely to an appeal of the decision in this case and having no effect upon Petitioner’s right to seek relief 

in state court through any proper means, or to again seek relief in federal court in the event that the 

state courts do not grant him the relief he seeks.

A copy of the Report and Recommendation was sent to Petitioner at his last known address, 

return receipt requested, but no objections have been received. The Fifth Circuit has explained that 

where a letter is properly placed in the United States mail, a presumption exists that the letter reached 

its destination in the usual time and was actually received by the person to whom it was addressed. 

Faciane v. Sun Life Assurance Company of Canada, 931 F.3d 412, 420–21 (5th Cir. 2019).

Because no objections have been received, Petitioner is barred from de novo review by the 

District Judge of the Magistrate Judge’s proposed findings, conclusions and recommendations and, 

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except upon grounds of plain error, from appellate review of the unobjected-to factual findings and 

legal conclusions accepted and adopted by the District Court. See Duarte v. City of Lewisville, Texas, 

858 F.3d 348, 352 (5th Cir. 2017); Arriaga v. Laxminarayan, Case No. 4:21-CV-00203- RAS, 2021 WL 

3287683, at *1 (E.D. Tex. July 31, 2021). 

The Court has reviewed the pleadings in this case and the Report of the Magistrate Judge. 

Upon such review, the Court has determined the Report of the Magistrate Judge is correct. See 

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (where no objections to a Magistrate 

Judge’s Report are filed, the standard of review is “clearly erroneous, abuse of discretion and 

contrary to law”). Accordingly, it is 

ORDERED that the Report of the Magistrate Judge (Docket No. 12) is ADOPTED as the 

opinion of the District Court. It is further 

ORDERED that the above-captioned petition for writ of habeas corpus is DISMISSED 

WITHOUT PREJUDICE for failure to exhaust state remedies. A certificate of appealability is 

denied sua sponte, with such denial referring solely to an appeal of the decision in this case and 

having no effect upon Petitioner’s right to seek relief in state court through any proper means, or to 

again seek relief in federal court in the event that the state courts do not grant him the relief he

seeks.

.

 

____________________________________

ROBERT W. SCHROEDER III

UNITED STATES DISTRICT JUDGE

So ORDERED and SIGNED this 1st day of October, 2024.

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