FAIRCLOTH v. MCLAUGHLIN

Filing 34

ORDER adopting re 27 Report and Recommendations and granting 14 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 10/29/12. (bcw)

2!2 CCI 2
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA-.,
STATESBORO DIVISION

ti 10: L

DON ROBERT FAIRCLOTH,
Petitioner,
V.

CIVIL ACTION NO.: CV612-043

GREGORY McLAUGHLIN, Warden,
Respondent.

ORDER
Petitioner Don Robert Faircloth ("Faircloth") filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent filed a Motion to Dismiss, and
Faircloth filed a Response. Respondent also filed two Notices of Filing in support of his
Motion to Dismiss. In a Report dated October 3, 2012, the Magistrate Judge
recommended that Faircloth's 28 U.S.C. § 2254 petition be dismissed. Faircloth filed
Objections to the Magistrate Judge's Report. Faircloth also filed a second Response to
Respondent's Motion to Dismiss and a Response to Respondent's second Notice of
Filing.
After an independent and de novo review of the record, the undersigned concurs
with the Magistrate Judge's Report and Recommendation. The Magistrate Judge
correctly determined that Faircloth's petition is time-barred and that Faircloth did not

AO 72A
(Rev. 8/82)

exhaust his state court remedies. Either of these findings is sufficient to dismiss
Faircloth's petition.
In his Objections, Faircioth argues that the Court has jurisdiction to hear his
petition and that his claims are meritorious. Neither of these Objections changes the
findings that Faircloth's petition is time-barred and that Faircioth did not exhaust his
state court remedies.
In his second Response to Respondent's Motion to Dismiss, Faircioth argues
that the Court has jurisdiction to hear his petition; that his claims are meritorious; and
that his First Amendment right to access the court has been, and continues to be,
violated due to inadequate prison libraries. None of these arguments changes the
findings that Faircloth's petition is time-barred and that Faircioth did not exhaust his
state court remedies. Faircloth also argues in this Response that his petition is not
untimely because it was filed "after the superior court submitted it's [sic] ruling on the

8th

day of March, 2012." (Doc. No. 32, p. 3). Faircloth made this argument in his first
Response to Respondent's Motion to Dismiss, and, after considering this argument, the
Magistrate Judge correctly determined that Faircloth's petition is time-barred.
In his Response to Respondent's second Notice of Filing, Faircioth argues that
the Court has jurisdiction to hear his petition; that he does not have access to an
adequate law library, in violation of his First Amendment right to access the court; that
his petition is timely; that his claims brought in his petition are meritorious; and that his
rights have been violated by the Court's actions in the instant case. None of these
arguments changes the findings that Faircioth's petition is time-barred and that Faircioth
did not exhaust his state court remedies.

AO 72A
(Rev. 8/82)

2

Faircioth's Objections to the Magistrate Judge's Report and Recommendation
are without merit and are overruled. The Report and Recommendation of the
Magistrate Judge is adopted as the Opinion of the Court. Respondent's Motion to
Dismiss is GRANTED. Faircloth's 28 U.S.C. § 2254 petition is DISMISSED. The Clerk
of Court is directed to enter the appropriate judgment of dismissal.
SO ORDERED, this .Jday of

,2012.

B/AVPKT

D, JUQE

UNITED STATES
EDENF9STRIGt COURT
SOUTHERN DISTRICT OF GEORGIA

AO 12A
(Rev, 8/82)

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