Simmons v. Fisher et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; motion 8 in case #4:16cv159-DMB-JMV is GRANTED; petition for writ of habeas corpus 1 in case #4:16cv159-DMB-JMV is DISMISSED with prejudice; consolidated cases 4:16cv51 and 4:16cv159 are CLOSED. Signed by District Judge Debra M. Brown on 7/10/17. Associated Cases: 4:16-cv-00051-DMB-JMV, 4:16-cv-00159-DMB-JMV (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ROBERT SIMMONS

PETITIONER

V.

NO. 4:16-CV-51-DMB-JMV

MARSHELL FISHER, et al.

RESPONDENTS
CONSOLIDATED WITH

ROBERT SIMMONS

PETITIONER

V.

NO. 4:16-CV-159-DMB-JMV

MARSHELL FISHER, et al.

RESPONDENTS

ORDER
On May 9, 2017, United States Magistrate Judge Jane M. Virden issued a Report and
Recommendation recommending that Robert Simmons’ petition for a writ of habeas corpus be
dismissed for failure to state a claim and failure to exhaust state remedies. Doc. #17 at 4;
Simmons v. Fisher, No. 4:16-cv-159 (N.D. Miss. May 9, 2017), at Doc. #10.1 The Report and
Recommendation warned:
Objections [to the Report and Recommendation] must be in writing and must be
filed within fourteen (14) days of this date, and “a party’s failure to file written
objections to the findings, conclusions, and recommendation in a magistrate
judge’s report and recommendation within [14] days after being served with a copy
shall bar that party, except on grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions accepted by the
district court ....” Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc)(citations omitted); see also United States v.
Carrillo-Morales, 27 F.3d 1054, 1061-62 (5th Cir. 1994), cert. denied, 513 U.S.
1178, 115 S.Ct. 1163, 130 L. Ed. 1119 (1995).
Doc. #17 at 5.
On May 9, 2017, the Report and Recommendation was mailed to Simmons at his last
1

On January 24, 2017, this Court ordered the Clerk of the Court to consolidate No. 4:16-cv-51 with No. 4:16-cv-159
because both involve the same petition for writ of habeas corpus. See Doc. #15.

known address. To date, no objections to the Report and Recommendation have been filed.
Accordingly, this Court’s review of the Report and Recommendation is limited to plain error.
Morales v. Mosley, No. 3:13-cv-848, 2014 WL 5410326, at *2 (S.D. Miss. Oct. 22, 2014) (citing
Shelby v. City of El Paso, 577 F. App’x 327, 331 (5th Cir. 2014)) (“When there has been no
objection to a report and recommendation, review is limited to plain error.”).
The Court has reviewed the Report and Recommendation and found no plain error. It is,
therefore, ORDERED:
1.

The May 9, 2017, Report and Recommendation [17] is ADOPTED as the opinion

of the Court;
2.

Respondents’ motion to dismiss [8] in No. 4:16-cv-159-DMB-JMV is

GRANTED;
3.

Simmons’ petition for a writ of habeas corpus [1] in No. 4:16-cv-159-DMB-JMV is

DISMISSED with prejudice for failure to state a claim upon which relief can be granted and
failure to exhaust state remedies; and
4.

These consolidated cases—No. 4:16-cv-51 and No. 4:16-cv-159—are CLOSED.

SO ORDERED, this 10th day of July, 2017.

/s/Debra M. Brown
_.
UNITED STATES DISTRICT JUDGE