Warner v. King et al

Filing 17

ORDER ADOPTING 14 REPORT AND RECOMMENDATIONS; granting 7 Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2244(d) filed by Jim Hood, Ronald King. Signed by District Judge Tom S. Lee on 11/14/13 (copy mailed to petitioner at #84411, SMCF, P.O. Box 1419, Leakesville, MS 39451)(LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JERRY LEE WARNER, #84411
VS.

PETITIONER
CIVIL ACTION NO. 3:13CV200TSL-JMR

RONALD KING

RESPONDENT
ORDER

This cause is before the court on the objection of
petitioner Jerry Lee Warner to the magistrate judge’s report and
recommendation entered on October 18, 2013.

Having reviewed

petitioner’s submission, the court now concludes that
petitioner’s objection1 is without merit and hereby adopts, as
its own opinion, the magistrate judge’s report and
recommendation.
Based on the foregoing, it is ordered that the report and
recommendation of United States Magistrate Judge John M. Roper

1

By his objection, Warner appears to assert that the
statute of limitations should be equitably tolled because he only
recently became aware that his trial/appellate counsel withdrew
her representation after the notice of appeal was filed but
before the Mississippi Court of Appeals affirmed his appeal.
Assuming for the sake of argument that Warner was unaware of
counsel’s withdrawal, he has failed to explain how this lack of
knowledge thwarted his ability to timely seek habeas relief in
this court. Holland v. Florida, –––U.S. ––––, 130 S. Ct. 2549,
2561, 177 L. Ed. 2d 130 (2010) (habeas petitioner is entitled to
equitable tolling only if he shows " ‘(1) that he ha[d] been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely filing")
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807,
161 L. Ed. 2d 669 (2005)). Accordingly, he has failed to
demonstrate that the statute of limitations should be tolled.

entered on or about October 18, 2013, be, and the same is hereby,
adopted as the finding of this court.
SO ORDERED this 14th day of November, 2013.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

2