Sullivan v. State of Mississippi

Filing 20

ORDER granting 13 Motion to Dismiss; and adopting Report and Recommendations re 18 Report and Recommendations as the finding of this Court. Plaintiffs petition for writ of habeas corpus is dismissed without prejudice. Signed by District Judge Louis Guirola, Jr. on 2/7/18. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
RICHARD DANIEL SULLIVAN
v.

PETITIONER
CAUSE NO. 1:17CV132-LG-JCG

STATE OF MISSISSIPPI, ET AL.

RESPONDENTS

ORDER ADOPTING REPORT AND RECOMMENDATION
AND GRANTING MOTION TO DISMISS
This cause comes before the Court on the Report and Recommendation [18] of
United States Magistrate Judge John C. Gargiulo, entered in this cause on January
10, 2018. The respondents in this habeas corpus action filed a motion to dismiss on
the grounds that the petitioner had failed to exhaust his state court remedies;
because he had pursued his claims pre-conviction, the state courts could not and did
not consider them on the merits. Thus, the claims in this federal habeas petition
had not been fairly presented to the state courts. The petitioner did not file an
objection to Magistrate Judge Gargiulo’s determination that dismissal of the habeas
corpus petition for failure to exhaust was appropriate.1 Therefore, the Court need
only review the Report 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 having reviewed the Report and Recommendation, the record in this
case, and the relevant law, the Court finds the Magistrate Judge’s conclusions

1

The Report and Recommendation was delivered via certified mail sometime
prior to January 12, 2018. (Acknowledgment of Receipt, ECF No. 19).

neither clearly erroneous nor contrary to law. The Court will grant the respondents’
Motion to Dismiss and dismiss the petitioner’s habeas corpus petition without
prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that the Report and
Recommendation [18] of United States Magistrate Judge John C. Gargiulo entered
in this cause on January 10, 2018, should be, and the same hereby is, adopted as
the finding of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that the respondents’
Motion to Dismiss [13] is GRANTED. Plaintiff’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice.
SO ORDERED AND ADJUDGED this the 7th day of February, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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