Johnson v. Brewer

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 10 Report and Recommendations. Petition for Writ of Habeas Corpus is denied, and this civil action is dismissed with prejudice. Signed by District Judge Halil S. Ozerden on 10/22/2013 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOHN E. JOHNSON
VERSUS
DWAIN BREWER

PETITIONER
CIVIL ACTION NO. 1:13-cv-39-HSO-RHW
RESPONDENT

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS OF
FACT AND RECOMMENDATION, DENYING PETITION FOR WRIT OF
HABEAS CORPUS, AND DISMISSING CASE WITH PREJUDICE
This matter comes before the Court on the Proposed Findings of Fact and
Recommendation [10] of United States Magistrate Judge Robert H. Walker, entered
in this case on September 25, 2013. The Magistrate Judge reviewed Petitioner John
E. Johnson’s Petition for Writ of Habeas Corpus [1] filed pursuant to 28 U.S.C. §
2254 and recommended that the Petition should be denied. Proposed Findings of
Fact and Recommendation [10], at p. 8. The Magistrate Judge recommended that
Petitioner’s Petition for Writ of Habeas Corpus [1] be denied as procedurally barred.
Id.
The Proposed Findings of Fact and Recommendation [10] were mailed to
Petitioner on September 25, 2013, via certified mail return receipt requested. An
acknowledgment of receipt [11], while not dated, was received by the Clerk of Court
and filed into the record on September 27, 2013. Any objection to the Magistrate
Judge’s Proposed Findings of Fact and Recommendation [10] was due within
fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date, Petitioner has not filed
any objection to the Magistrate Judge’s Proposed Findings of Fact and

Recommendation [10].
Where no party has objected to the Magistrate Judge’s Report and
Recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989).

Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. For the foregoing reasons, the Court will adopt the
Magistrate Judge’s Proposed Findings of Fact and Recommendation [10] as the
opinion of this Court. Petitioner John E. Johnson’s Petition for Writ of Habeas
Corpus [1] filed pursuant to 28 U.S.C. § 2254 should be denied, and this civil action
will be dismissed with prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Proposed
Findings of Fact and Recommendation [10] of Magistrate Judge Robert H. Walker,
entered on September 25, 2013, is adopted in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Petitioner John E.
Johnson’s Petition for Writ of Habeas Corpus [1], filed pursuant to 28 U.S.C. § 2254,
is DENIED, and this civil action is DISMISSED WITH PREJUDICE. A separate
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judgment in accordance with this Order will be entered, as required by Federal Rule
of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 22nd day of October, 2013.

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

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