Cannady v. Huffman

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATIONS - IT IS, FURTHER, ORDERED AND ADJUDGED that Respondent's 11 Motion to Dismiss is GRANTED, Petitioner's request for an evidentiary hearing is denied, see 1 at 15, and this case is DISMISSED with prejudice. The Court concludes also that a certificate of appealability ("COA") shall not issue. A separate Final Judgment will issue this day. Signed by District Judge Kristi H. Johnson on 11/21/2022 (ND)

Case 3:22-cv-00130-KHJ-BWR Document 18 Filed 11/21/22 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CORNELIUS CANNADY, #T4697
V.

PETITIONER
CIVIL ACTION NO. 3:22-CV-130-KHJ-BWR

BRAND HUFFMAN

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation (“Report”) of United
States Magistrate Judge Bradley W. Rath. [17]. The Report recommends: granting
Respondent Brand Huffman’s [11] Motion to Dismiss; dismissing with prejudice
Petitioner Cornelius Cannady’s Petition for Habeas Relief under 28 U.S.C. § 2254;
and denying Cannady’s requests for an evidentiary hearing and appointment of
counsel. [17] at 24–25. Written objections to the Report were due by November 10,
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. Id.
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) (“A
judge of the court shall make a de novo determination of those portions of the report
or specified proposed findings and recommendations to which objection is made.”).
Instead, the Report is reviewed under the “clearly erroneous, abuse of discretion
and contrary to law” standard of review. United States v. Wilson, 864 F.2d 1219,
1221 (5th Cir. 1989).

Case 3:22-cv-00130-KHJ-BWR Document 18 Filed 11/21/22 Page 2 of 3

Cannady seeks habeas relief, contending, among other things, he is actually
innocent, his sentence is illegal, and he received ineffective assistance of trial and
appellate counsel. Huffman moved to dismiss Cannady’s petition as time-barred
under the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) oneyear statute of limitations. See 28 U.S.C. § 2244(d); Sup. Ct. R. 13.1. The Magistrate
Judge recommends dismissing the petition with prejudice because Cannady filed it
after the limitations period expired, and no statutory or equitable tolling applies.
Moreover, the Magistrate Judge recommends Cannady failed to demonstrate he is
entitled to an evidentiary hearing under 28 U.S.C. § 2254(e)(2), or appointment of
counsel. Cannady did not object to the Report. The Report is neither clearly
erroneous nor contrary to law. Accordingly, it is adopted as the opinion of this
Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [17] Report and
Recommendation of United States Magistrate Judge Bradley W. Rath is adopted as
the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Respondent’s [11]
Motion to Dismiss is GRANTED, Petitioner’s request for an evidentiary hearing is
denied, see [1] at 15, and this case is DISMISSED with prejudice.
The Court concludes also that a certificate of appealability (“COA”) shall not
issue. To obtain a COA, Cannady must show “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court

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Case 3:22-cv-00130-KHJ-BWR Document 18 Filed 11/21/22 Page 3 of 3

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(emphasis added). Cannady satisfies the first prong, but he fails to meet the second.
A separate Final Judgment will issue this day.
SO ORDERED, this the 21st day of November, 2022.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE

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