Ewing v. Cooley et al

Filing 19

ORDER granting 13 Motion to Dismiss; adopting Report and Recommendations re 17 Report and Recommendations. Ordered that the Petition for Writ of Habeas Corpus is dismissed with prejudice. Signed by District Judge Halil S. Ozerden on 2/16/17. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICKY RONNELL EWING

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v.
HUBERT DAVIS, Warden, and
TIMOTHY BARNES, Deputy Warden

PETITIONER
Civil No. 1:15cv381-HSO-JCG

RESPONDENTS

ORDER ADOPTING MAGISTRATE JUDGE’S [17] REPORT
AND RECOMMENDATION, GRANTING RESPONDENTS’
[13] MOTION TO DISMISS, AND DISMISSING WITH PREJUDICE
PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the Court on the Report and Recommendation [17]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
January 17, 2017, and the Motion to Dismiss [13] filed by Respondents Hubert
Davis and Timothy Barnes on July 11, 2016. The Magistrate Judge recommended
that Respondents’ Motion to Dismiss [13] be granted and that Petitioner Ricky
Ronnell Ewing’s Petition for Writ of Habeas Corpus be dismissed as barred by the
statute of limitations. R. & R. [17] at 4. After due consideration of the Report and
Recommendation [17], the Motion to Dismiss [13], the record, and relevant legal
authority, the Court finds that the Magistrate Judge’s Report and Recommendation
[17] should be adopted, that Respondents’ Motion to Dismiss [13] should be granted,

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and that Petitioner’s Petition for Writ of Habeas Corpus should be dismissed with
prejudice.
I. BACKGROUND
A.

Factual Background
On or about October 8, 2011, Petitioner Ricky Ronnell Ewing (“Petitioner”)

entered guilty pleas in two different cases in the Circuit Court of Clay County,
Mississippi. Sentencing Order [13-1] at 1-3; Sentencing Order [13-2] at 1-3.
Petitioner pleaded guilty to the crimes of manslaughter in violation of Mississippi
Code § 97-3-35, and being a convicted felon in possession of a firearm in violation
Mississippi Code § 97-37-5, and was sentenced to a 20-year term of imprisonment
and a three-year term of imprisonment, respectively, to run consecutively, in the
custody of the Mississippi Department of Corrections (“MDOC”). Sentencing Order
[13-1] at 1-3; Sentencing Order [13-2] at 1-3.
During his incarceration, in 2012, Petitioner received five Rule Violation
Reports (“RVRs”), which each resulted in 30-days of lost “earned time.” See RVRs
[10-1]. The RVRs advised Petitioner that he could appeal the findings to the Legal
Claims Adjudicator within 30 days, see id., but the record reflects that Petitioner
did not timely appeal.
On or about June 23, 2015, Petitioner filed an MDOC Administrative Remedy
Program (“ARP”) form requesting his “loss of earned time back.” ARP [13-4] at 3.
Petitioner’s ARP was rejected as untimely because there had been a lapse of more
than 30 days between the event the initial request. ARP [13-4] at 1. On July 20,
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2015, Petitioner filed another ARP form requesting to “get [his] loss of earned time
back,” ARP [10-1] at 6, which was again rejected, ARP [10-1] at 7.
B.

Procedural History
On August 19, 2015, Petitioner signed a Complaint pursuant to 42 U.S.C. §

1983, which was filed by the Clerk of Court in a different civil action, 1:15cv277HSO-JCG, on August 27, 2015. On November 16, 2015, the Court entered an
Order [6] severing Petitioner’s habeas claims from the § 1983 action, and directing
the Clerk of Court to open the present case for Petitioner’s habeas claims pursuant
to 28 U.S.C. § 2254. Order [6] at 1-2. The present habeas case was opened on that
date.
On July 11, 2016, Respondents Hubert Davis and Timothy Barnes
(“Respondents”) filed a Motion to Dismiss [13]. Petitioner filed a Response [16] in
opposition to the Motion on September 2, 2016. The Magistrate Judge entered a
Report and Recommendation [17] on January 17, 2017, recommending that
Petitioner’s habeas corpus Petition pursuant to § 2254 be dismissed with prejudice
as barred by the statute of limitations.
A copy of the Report and Recommendation was mailed to Petitioner at his
address of record via certified mail, return receipt requested, on January 17, 2017.
The acknowledgement of receipt [18] was marked delivered on January 24, 2017.
Acknowledgement [18] at 1. Petitioner has not filed any objections to the Report
and Recommendations, and the time for doing so has passed.

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II. DISCUSSION
Where no party has objected to a 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 or 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. Even under a de novo review, the Court concludes
that Petitioner’s application for habeas relief is barred by the one-year statute of
limitations contained in 28 U.S.C. § 2244(d). Dismissal is warranted.
III. CONCLUSION
For the reasons stated herein, the Court will adopt the Magistrate Judge’s
Report and Recommendation [17] as the opinion of this Court and will dismiss
Petitioner’s Petition for Writ of Habeas Corpus with prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [17] of United States Magistrate Judge John C. Gargiulo, entered
in this case on January 17, 2017, is adopted in its entirety as the finding of this
Court.

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IT IS, FURTHER, ORDERED AND ADJUDGED that, Motion to Dismiss
[13] filed by Respondents Hubert Davis and Timothy Barnes on July 11, 2016, is
GRANTED, and Petitioner Ricky Ronnell Ewing’s Petition for Writ of Habeas
Corpus is DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED, this the 16th day of February, 2017.

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

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