Hartzog v. Mississippi Department of Corrections et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS re: 10 Report and Recommendations, granting 9 Motion to Dismiss. Petitioner's 28 U.S.C. 2254 habeas corpus application is Dismissed without prejudice for failure to exhaust. Signed by Chief District Judge Louis Guirola, Jr. on 6/5/2015 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
NIKIAL L. HARTZOG
v.

PETITIONER
CAUSE NO. 1:14CV455-LG-RHW

MISSISSIPPI DEPT. OF CORRECTIONS, ET AL.

RESPONDENTS

ORDER ADOPTING PROPOSED FINDINGS OF FACT
AND RECOMMENDATION AND GRANTING
RESPONDENTS’ MOTION TO DISMISS
This cause comes before the Court on the Proposed Findings of Fact and
Recommendation of United States Magistrate Judge Robert Walker entered in this
cause on April 23, 2015. Magistrate Judge Walker reviewed the Respondents’
Motion to Dismiss for Failure to Exhaust and determined that it should be granted,
because Hartzog’s Petition indicated, and counsel for the Respondents confirmed,
that Hartzog had not filed an application for leave to seek post-conviction relief
from his conviction and sentence in the Mississippi Supreme Court. Hartzog did
not file a response to the Respondents’ Motion to Dismiss, nor has he filed an
objection to the Proposed Findings of Fact and Recommendation.1
Under these circumstances, the Court need only review the Proposed
Findings of Fact and Recommendation and determine whether it is either clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989). After review of this matter, the Court finds that the Proposed Findings of

1

The Proposed Findings of Fact and Recommendation was mailed to
Hartzog’s address on record with the Court, but it was returned as undeliverable.
(See ECF No. 12).

Fact and Recommendation is neither clearly erroneous nor contrary to law. It will
therefore be adopted as the opinion of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Proposed
Findings of Fact and Recommendation of United States Magistrate Judge Robert H.
Walker entered in this cause on April 23, 2015 [10] should be, and the same hereby
is, adopted as the finding of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that Respondents’ Motion
to Dismiss [9] for Failure to Exhaust is GRANTED. Petitioner’s 28 U.S.C. § 2254
habeas corpus application is DISMISSED without prejudice for failure to exhaust.
SO ORDERED AND ADJUDGED this the 5th day of June, 2015.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE