Kindrex v. City of Jackson et al

Filing 22

ORDER ADOPTING 19 Report and Recommendation, Granting Respondent's 14 Motion to Dismiss, and Dismissing Petitioner's Petition for writ of Habeas Corpus. Signed by District Judge Halil S. Ozerden on 1/22/2014 (ND)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
BILLY KINDREX, JR.
v.

PLAINTIFF
CIVIL ACTION NO. 3:13-cv-98-HSO-RHW

TYRONE LEWIS, Sheriff

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING
RESPONDENT’S MOTION TO DISMISS, AND DISMISSING PETITIONER’S
PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on the Report and Recommendation [19] of
Magistrate Judge Robert H. Walker, entered in this cause on October 29, 2013. On
March 22, 2013, Petitioner Billy Kindrex, Jr., filed a prisoner’s civil rights suit
pursuant to 42 U.S.C. § 1983. Civil Action No. 3:12cv704-DPJ-FKB. On February
19, 2013, the habeas claims in Kindrex’s Complaint were severed and filed as the
present action. Order [1] Severing Habeas Claims. On May 13, 2013, Respondent
Tyrone Lewis, the Sheriff of Hinds County, Mississippi, filed a Motion [14] to
Dismiss Kindrex’s habeas suit because Kindrex failed to exhaust his habeas claims
in state court prior to requesting federal collateral relief. Kindrex filed a Response
[15] to Lewis’s Motion to Dismiss, and Lewis filed a Rebuttal [16].
After consideration of the Motion, the record, and relevant legal authorities,
the Magistrate Judge recommended that Lewis’s Motion [14] to Dismiss be granted
and Kindrex’s 28 U.S.C. § 2254 Writ of Habeas Corpus be dismissed because
Kindrex did not exhaust his habeas claims in state court or establish sufficient
cause to overcome his procedural default. Rep. and Rec. [19] at pp. 4-5.
Accordingly, the Magistrate Judge concluded that this Court is barred from

considering Kindrex’s claims on their merits. Id. at p. 5.
The Magistrate Judge’s Report and Recommendation advised Kindrex that
he had fourteen days from the date he received the Report and Recommendation to
serve and file written objections. Id. at p. 6. The Clerk of Court mailed the Report
and Recommendation [19] to Kindrex via certified mail to his address of record at
the Hinds County Penal Farm. The letter was returned with a handwritten
notation that Kindrex had been released. Returned Mail [20]. During the early
stages of this case, Kindrex was warned that “failure . . . to keep the Court informed
of [his] current address may result in dismissal of this cause.” Order [5]. Kindrex’s
failure to provide a current address is therefore inexcusable.
Where a party fails to file specific objections to a magistrate judge’s proposed
findings of fact and recommendation, the district court reviews the proposed
findings of fact and recommendation for findings and conclusions that are clearly
erroneous or contrary to law. 28 U.S.C. § 636(b)(1); see United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989). The Court finds that the Magistrate Judge
properly recommended that Lewis’s Motion [14] to Dismiss be granted and
Kindrex’s Petition [2] for Writ of Habeas Corpus be dismissed. After referral of
hearing by this Court, no objections having been filed as to the Report and
Recommendation, and the Court, having fully reviewed the same as well as the
record and relevant law in this matter, finds that the Magistrate Judge’s Report
and Recommendation is neither clearly erroneous nor contrary to law and should be
adopted in its entirety as the opinion of this Court.
-2-

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [19] of Magistrate Judge Robert H. Walker is adopted in its
entirety as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion [14] to
Dismiss, filed by Respondent Tyrone Lewis, the Sheriff of Hinds County,
Mississippi, is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the 28 U.S.C.
§ 2254 Petition [2] for Writ of Habeas Corpus filed by Petitioner Billy Kindrex, Jr.,
is DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED, this the 22nd day of January, 2014.

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

-3-