Young v. White

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker dismissing case with prejudice. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on December 5, 2014 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

LONNIE YOUNG, A/K/A
XMOE DRAGON
VS.

CIVIL ACTION NO. 2:14cv76-KS-MTP

MICHAEL WHITE
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition of Lonnie Young for Writ of Habeas Corpus
[1], filed pursuant to 28 U.S.C. § 2254 and Respondent’s Motion to Dismiss [4] filed pursuant to
28 U.S.C. § 2244(d). The Court has considered the above documents, as well as the record and
applicable law herein and the Report and Recommendation of Magistrate Judge Michael T.
Parker [9], and considering all of the above, finds that the Respondent’s Motion to Dismiss [4]
should be dismissed with prejudice.
I. PROCEDURAL HISTORY
On January 13, 2010, Petitioner was convicted of murder in the Circuit Court of Wayne
County, Mississippi. Petitioner received a life sentence, and is currently incarcerated at the
Central Mississippi Correctional Facility (“CMCF”).1 Petitioner appealed his conviction and
sentence to the Mississippi Supreme Court, and the appeal was assigned to the Mississippi Court
of Appeals. The appeals court affirmed Petitioner’s conviction in a published opinion on August
30, 2011. Young v. State, 99 So. 3d 189 (Miss. Ct. App. 2011), reh’g denied Dec. 6, 2011. On

1

See Petition [1] at 1.

April 12, 2012, the Mississippi Supreme Court granted certiorari review.2 The Mississippi
Supreme Court affirmed Young’s conviction and sentence on October 4, 2012. Young v. State,
99 So.3d 159 (Miss. 2012). According to United States Supreme Court electronic docket and the
Petition [1] filed in this case, Young did not file a petition for writ of certiorari to the United
States Supreme Court.
Petitioner filed an application for leave to file a motion for post conviction collateral
relief with the Mississippi Supreme Court on September 6, 2013.3 The Mississippi Supreme
Court denied the application on October 16, 2013.4
Petitioner submitted his federal Petition for Writ of Habeas Corpus [1] on or about May
27, 2014.5 Respondent contends in his Motion [4] that the instant petition was not timely filed
and that it should be dismissed.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v.
Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III
Judge as to those issues to which an objection is made.”) Such review means that this Court will
examine the entire record and will make an independent assessment of the law. The Court is not
2

Exhibit C [4-3].

3

Exhibit E [4-5].

4

Exhibit F [4-6].

5

Under the mailbox rule, a prisoner’s federal habeas petition is deemed filed when he
delivers the petition to prison officials for mailing to the district court. Coleman v. Johnson, 184
F.3d 398, 401 (5th Cir. 1999). Young signed his petition on May 27, 2014, Petition [1], and the
Court received it on June 2, 2014. Thus, Young filed his Petition between May 27 and June 2.

required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous,
conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421
(5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments
contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
The main objection filed by Petitioner is that 28 U.S.C. § 2244(d) does not say what it
says. His argument is that the one year statute of limitations starts to run following the
expiration of the time that Petitioner has to file a post conviction petition. In Mississippi there is
a three year limitation on filing a post conviction relief petition. Under Petitioner’s
interpretation, Petitioner could wait two years and 364 days from the date that the case becomes
final in the state courts and then file a habeas petition. This is simply not the law.
Judge Parker’s calculations of the time are correct and Petitioner’s 2254 motion is out of
time and should be dismissed.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the objections. For the reasons
set forth above, this Court concludes that Petitioner’s objections lack merit and should be
overruled. The Court further concludes that the Report and Recommendation is an accurate
statement of the facts and the correct analysis of the law in all regards. Therefore, the Court
accepts, approves and adopts the Magistrate Judges’s factual findings and legal conclusions
contained in the Report and Recommendation. Accordingly, it is ordered that the United States
Magistrate Judge Michael T. Parker’s Report and Recommendation is accepted pursuant to 28

U.S.C. § 636(b)(1) and that Lonnie Young’s claim is dismissed with prejudice. All other
pending motions are denied as moot.
SO ORDERED this, the 5th day of December, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE