Falcon v. Cain
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, 12 Motion to Dismiss - IT IS, FURTHER, ORDERED AND ADJUDGED that Respondents Motion to Dismiss 12 be denied as moot. Cain has 30 days from today to file an answer or other responsive pleading to the petition. Signed by District Judge Kristi H. Johnson on 05/10/2022 (CO)
Case 3:21-cv-00376-KHJ-FKB Document 17 Filed 05/10/22 Page 1 of 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RODOLFO McCANDLESS
FALCON, IV
V.
PETITIONER
CIVIL ACTION NO. 3:21-CV-376-KHJ-FKB
COMMISSIONER BURL CAIN
RESPONDENT
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation of United States
Magistrate Judge F. Keith Ball. [16]. That Report recommends that the Court deny
Respondent Commissioner Burl Cain’s Motion to Dismiss [12] as moot. Written
objections to the Report were due by May 9, 2022. The Report notified the parties
that failure to file written objections to the findings and recommendations by that
date would bar further appeal in accordance with 28 U.S.C. § 636.
When no party has objected to a magistrate judge’s report and
recommendation, the Court need not review it de novo. 28 U.S.C. § 636(b)(1). In
such cases, the Court can apply the clearly erroneous, abuse of discretion, and
contrary to law standards of review. See United States v. Brigham, 569 F.3d 220,
228 (5th Cir. 2009) (citation omitted).
Petitioner Rodolfo McCandless Falcon, IV filed for habeas relief pursuant to
28 U.S.C. § 2254. See Petition for Writ of Habeas Corpus [1]. Respondent Cain
moved to dismiss the petition because it contained both exhausted and unexhausted
claims. Respondent’s Mot. to Dismiss [12] at 2. In response, Falcon asked the Court
Case 3:21-cv-00376-KHJ-FKB Document 17 Filed 05/10/22 Page 2 of 2
to hold the petition in abeyance while he awaited a ruling by the Supreme Court of
Mississippi on his state motion for post-conviction relief. Resp. [14]. Cain later filed
a Supplement to the Motion to Dismiss [15], informing the Court that both of
Falcon’s claims were now exhausted, and thus the Motion to Dismiss [12] was moot.
[15] at 2–3.
Based on this, the Magistrate Judge recommended that the Court deny the
Motion to Dismiss [12] as moot. [16] at 1. The Magistrate Judge further
recommended that if the Report and Recommendation is adopted, Cain be given 30
days from entry of this Order to file an answer or other responsive pleading to the
petition. Id. Falcon did not object to the Recommendation, and his time to do so has
passed. The Court finds the Report and Recommendation is not clearly erroneous or
contrary to law. The Court adopts the Report and Recommendation as the opinion
of this Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Recommendation [16] of United States Magistrate Judge F. Keith Ball, entered in
this cause should be, and the same is, adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Respondent’s Motion to
Dismiss [12] be denied as moot. Cain has 30 days from today to file an answer or
other responsive pleading to the petition.
SO ORDERED AND ADJUDGED this the 10th day of May, 2022.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE
2
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