Brown v. Hubbard

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations, granting 11 Motion to Dismiss, filed by Unknown Hubbard. Petition for Writ of Habeas Corpus 8 is dismissed. Signed by District Judge Halil S. Ozerden on 2/19/2015 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
PAUL ANTHONY BROWN
VERSUS

PETITIONER
CIVIL ACTION NO. 1:14-cv261-HSO-RHW

UNKNOWN HUBBARD, Warden

RESPONDENT

ORDER ADOPTING PROPOSED FINDINGS OF FACT AND
RECOMMENDATION, GRANTING RESPONDENT’S MOTION TO DISMISS,
AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
This cause comes before the Court on the Proposed Findings of Fact and
Recommendation [15] of United States Magistrate Judge Robert H. Walker, entered
in this case on November 24, 2014, and the Motion to Dismiss [11] of Respondent
Unknown Hubbard, Warden. The Magistrate Judge reviewed Petitioner Paul
Anthony Brown’s Petition for Writ of Habeas Corpus [8] filed pursuant to 28 U.S.C.
§ 2254 and Respondent’s Motion to Dismiss [11], and determined that the Motion to
Dismiss [11] should be granted. Report and Recommendation [15] at 3. The
Magistrate Judge recommended that Petitioner’s Petition for Writ of Habeas
Corpus [8] be dismissed for failure to exhaust state remedies. Id.
A copy of the Proposed Findings of Fact and Recommendation [15] was
mailed to Petitioner on November 24, 2014, via certified mail return receipt
requested. The envelope containing the Proposed Findings of Fact and
Recommendation [15] was returned as unclaimed and filed into the record on
January 13, 2015. Return [16] at 1. According to an internal staff note on the
docket, Petitioner called the Clerk of Court on January 26, 2015, and informed the

Clerk that his address had not changed. The Clerk re-mailed the Proposed
Findings of Fact and Recommendation [15] to Petitioner on January 26, 2015. Any
objection to the Magistrate Judge’s Proposed Findings of Fact and Recommendation
[15] 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 [15], and the time to do so has now passed.
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 [15] as the
opinion of this Court. Respondent’s Motion to Dismiss [11] will be granted, and
Petitioner’s Petition for Writ of Habeas Corpus [8] filed pursuant to 28 U.S.C. §
2254 will be dismissed for failure to exhaust state remedies.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Proposed
Findings of Fact and Recommendation [15] of Magistrate Judge Robert H. Walker,
-2-

entered on November 24, 2014, is adopted in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Respondent’s
Motion to Dismiss [11] is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Petitioner Paul
Anthony Brown’s Petition for Writ of Habeas Corpus [8] filed pursuant to 28 U.S.C.
§ 2254 is DISMISSED. A separate judgment in accordance with this Order will be
entered, as required by Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 19th day of February, 2015.

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

-3-