Brown v. Errington

Filing 15

ORDER adopting Report and Recommendations re 11 Report and Recommendations as the finding of this Court. Petitioner's petition for writ of habeas corpus is denied with prejudice; denying 14 Motion to Dismiss. signed by District Judge Louis Guirola, Jr. on 10/7/21. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JAMES DEVON BROWN
v.

PETITIONER
CAUSE NO. 1:20CV282-LG-MTP

JOE ERRINGTON

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING PETITIONER’S MOTION TO DISMISS
BEFORE THE COURT is the [11] Report and Recommendation of United
States Magistrate Judge Michael T. Parker, as well as a [14] Motion to Dismiss filed
by the petitioner, James Devon Brown. On August 31, 2020, Brown filed his
petition for writ of habeas corpus based on two grounds: (1) that he was sentenced
to a greater sentence than the plea bargain offered by the State of Mississippi; and
(2) that his due process rights to a fast and speedy trial were violated. On July 29,
2021, Magistrate Judge Parker submitted his [11] Report and Recommendation,
recommending that the petition for writ of habeas corpus be denied with prejudice.
First, Magistrate Judge Parker determined that the State of Mississippi exercised
its discretion in the enforcement of its habitual criminal statute in order to
encourage a guilty plea. (See Report & Rec., at 7-8, ECF No. 11). It was also
determined that there was no prejudice to Brown when the State amended its
indictment to charge Brown as a habitual offender. (See id. at 9). Second, after
applying the Barker factors, Magistrate Judge Parker found that Brown’s claims
regarding his right to a speedy trial were not violated. (See id. at 10-15). Brown did
not file an objection, but instead submits to the Court his [14] Motion to Dismiss for

leave to proceed in the state court due to “newly discovered evidence.” (Mot. to
Dismiss, at 2, ECF No. 14). Brown does not explain his newly discovered evidence.
The Court construes Brown’s Motion to Dismiss as an Objection to the instant
Report and Recommendation.
A party that files a timely objection is entitled to a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which specific objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); 28 U.S.C. § 636(b)(1). The objections must specifically identify those
findings or recommendations to which objections are being made. The district court
need not consider frivolous, conclusive, or general objections. Battle v. United
States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
Brown makes no argument regarding the claims submitted before the Court
in his petition for writ of habeas corpus. His sole request is for the Court to dismiss
his petition so he may assert “newly discovered evidence” in state court. To the
extent Brown objects to Magistrate Judge Parker’s Report and Recommendation
based on this alleged new evidence, such a claim fails. Brown makes no showing or
explanation of his alleged new evidence. See Reed v. Stephens, 739 F.3d 753, 767
(5th Cir. 2014); see also Davis v. Blackburn, 789 F.2d 350, 352 (5th Cir. 1986).
Moreover, Brown does not challenge Magistrate Judge Parker’s factual findings and
determination.
The Court has conducted a de novo review of Brown’s objections to the
magistrate judge’s findings, the record in this case, and relevant law. For the

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reasons stated in Magistrate Judge Parker’s [11] Report and Recommendation, the
petition for writ of habeas corpus is hereby denied with prejudice. Brown’s [14]
Motion to Dismiss is further denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the [11] Report
and Recommendation of United States Magistrate Judge Michael T. Parker is
ADOPTED as the finding of this Court. Petitioner’s petition for writ of habeas
corpus is hereby DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED AND ADJUDGED that the [14] Motion to
Dismiss filed by the petitioner, James Devon Brown, is DENIED.
SO ORDERED AND ADJUDGED this the 7th day of October, 2021.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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