Duckworth v. Goff

Filing 40

ORDER denying Petitioner's Motion for Leave to File Amended Brief in Support of Habeas Petition 27 ; adopting Report and Recommendations 31 . Signed by District Judge Halil S. Ozerden on 8/9/2012. (Brown, T.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ELNORSH DUCKWORTH

PETITIONER

VERSUS

CIVIL ACTION NO. 1:11cv1HSO-JMR

PRESTON GOFF

RESPONDENT

ORDER OVERRULING PETITIONER’S OBJECTIONS, ADOPTING
REPORT AND RECOMMENDATIONS, AND DENYING
PETITIONER’S MOTION FOR LEAVE TO FILE AMENDED
BRIEF IN SUPPORT OF HABEAS CORPUS PETITION
This matter is before the Court on Petitioner Elnorsh Duckworth’s
[“Duckworth”] Objections [33] to the Report and Recommendations of Chief United
States Magistrate Judge John M. Roper [31] entered in this cause on April 26, 2012.
Respondent filed a Notice [34] of Intention Not to File Formal Response to
Petitioner’s Objection on May 11, 2012.1
I. DISCUSSION
A.

Legal Standard
Because an Objection has been filed to the Magistrate’s Report and

Recommendations [33], this Court is required to “make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also Rule 8(b) of RULES
GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS; Longmire
v. Gust, 921 F.2d 620, 623 (5th Cir. 1991)(party is “entitled to a de novo review by
1

On January 17, 2012, Respondent Preston Goff filed a Response [28] in
Opposition to Petitioner’s Motion for Leave to File an Amended Brief in Support of
Habeas Corpus Petition [27].

an Article III Judge as to those issues to which an objection is made”). The Court is
not required, however, to reiterate the findings and conclusions of the Magistrate
Judge, Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993), nor need it consider
objections which are frivolous, conclusive, or general in nature, Battle v. United
States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987).
B.

Analysis
Duckworth requests that the Certificate of Appealability [20] be held in

abeyance, that deference be given to his pro se status, and that this Court retain
jurisdiction until such time as it has ruled on his Rule 60(b) Motion. Obj. [33], at p.
4. In further support of his argument, Duckworth has attached his previously filed
Objections [33 1-3, 13] as Exhibits to the his latest Objection. These Objections [13]
were submitted in response to the Report and Recommendations [10] entered by the
Magistrate Judge on June 13, 2011. Therefore, they were previously considered by
this Court. On August 9, 2012, the Court entered an Order [39] denying
Duckworth’s Motion for Relief from Final Judgment pursuant to FED. R. CIV. P.
60(b). Thus, the relief requested by Duckworth here, to amend his Petition, has
been rendered moot.
Based on the foregoing, the Court finds that the Magistrate Judge’s Report
and Recommendations are well reasoned, and that they correctly find the applicable
facts and apply the governing legal standards.
II. CONCLUSION

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For the reasons stated herein, after thoroughly reviewing the findings in the
Report and Recommendations, in addition to the positions advanced in Duckworth’s
Objection [33], and the relevant legal authorities, the Court finds that Duckworth’s
Objection should be overruled, the Magistrate’s Report and Recommendations [31]
entered on April 26, 2012, should be adopted as the findings of the Court, and
Duckworth’s Motion [27] for Leave to File an Amended Brief in Support of Habeas
Corpus Petition should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Duckworth’s
Objection [33] to the Report and Recommendations filed in this cause on May 10,
2012, is OVERRULED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Report and
Recommendations [31] of Chief Magistrate Judge John M. Roper entered on April
26, 2012, are adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Petitioner’s Motion
for Leave to File an Amended Brief in Support of Habeas Corpus Petition [27] is
DENIED.
SO ORDERED AND ADJUDGED, this the 9th day of August, 2012.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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