Sweet v. State of Mississippi et al

Filing 12

ORDER ADOPTING 8 Report and Recommendation; it is further ordered that a certificate of appealability is denied. Signed by District Judge Tom S. Lee on 9/20/16. (RRL)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
BRIAN SWEET

PETITIONER

VS.

CIVIL ACTION NO. 3:16CV53TSL-JCG

STATE OF MISSISSIPPI

RESPONDENT
ORDER

This cause is before the court on the August 29, 2016 report
and recommendation of United States Magistrate Judge John C.
Gargiulo, recommending that the court grant respondent’s motion to
dismiss Sweet’s § 2254 petition.

Sweet has filed objections to

the report and recommendation, and the court, having considered
the objections, now concludes that they are not well taken and
should be overruled and that the report and recommendation should
be adopted as the opinion of the court.
IT IS, THEREFORE, ORDERED that the report and recommendation
of United States Magistrate Judge John C. Gargiulo entered on
August 29, 2016, be, and the same is hereby adopted as the finding
of this court.

Accordingly, it is ordered that respondent’s

motion to dismiss is granted and the petition for writ of habeas
corpus is hereby dismissed with prejudice.
It is further ordered that a certificate of appealability is
denied because petitioner has failed to demonstrate that "jurists
of reason would find it debatable whether [this] court was correct
in its procedural ruling,” and has also failed to show that

"jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right....”
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed.
2d 542 (2000).
A separate judgment will be entered herein in accordance with
this order as required by Rule 58 of the Federal Rules of Civil
Procedure.
SO ORDERED this 20th day of September, 2016.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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