Wallace v. Cain

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations, granting 9 Motion to Dismiss filed by Burl Cain: Accordingly, IT IS HEREBY ORDERED that Magistrate Judge F. Keith Ball's Report and Recommendation [E CF No. 11] is ADOPTED as the findings and conclusions of this Court. IT IS FURTHER ORDERED that the Motion to Dismiss [ECF No. 9] is GRANTED. IT IS FURTHER ORDERED that the Petitioners request for an evidentiary hearing is DENIED, and his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus [ECF No. 1] is DISMISSED with prejudice. Signed by District Judge David C. Bramlette, III on 8/2/2022 (LAT)

Case 5:21-cv-00070-DCB-FKB Document 12 Filed 08/02/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CARL MAURICE WALLACE,
# N6216
VS.

PETITIONER
CIVIL ACTION NO. 5:21-cv-70-DCB-FKB

BURL CAIN

RESPONDENT
ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court on Magistrate Judge F.
Keith Ball’s Report and Recommendation [ECF No. 11], which
recommends that Burl Cain (“Respondent”)’s Motion to Dismiss
[ECF No. 9] be granted and that this case be dismissed with
prejudice.

[ECF No. 11] at 5.

Carl Maurice Wallace

(“Petitioner”) did not respond to the Motion to Dismiss, and he
filed no objections to the Report and Recommendation.

The

respective deadlines for filing a response to the Motion to
Dismiss and objections to the Report and Recommendation have
passed. 1

Having reviewed de novo the Report and Recommendation,

The Report and Recommendation provided the parties with a
notice of their right to object and the time deadlines for doing
so. It also warned the parties of the consequences that result
from a failure to object. [ECF No. 11] at 5; see Douglass v.
United Servs. Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir.
1996) (en banc), superseded by statute on other grounds, 28
U.S.C. § 636(b)(1).
1

1

Case 5:21-cv-00070-DCB-FKB Document 12 Filed 08/02/22 Page 2 of 3

and having carefully reviewed the submissions of the parties
(including the petition for writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254, [ECF No. 1], and the Motion to Dismiss,
[ECF No. 9]) and applicable statutory and case law, the Court
finds the Report and Recommendation to be well-taken.
Magistrate Judge Ball recommended that Petitioner's federal
habeas petition be dismissed as time-barred because it was filed
more than four (4) months after the expiration of the one-year
statute of limitations set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2244(d), 2 and because Petitioner made no attempt to demonstrate
the rare and extraordinary circumstances required for equitable
tolling of the AEDPA’s limitations period.

Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)(petitioner has the burden to prove that
he is entitled to equitable tolling); Davis v. Johnson, 158 F.3d
806, 811 (5th Cir. 1998)(AEDPA may be equitably tolled only in
“rare and exceptional circumstances”).

Given the recommended

dismissal for an untimely filing, the Magistrate Judge also

The Magistrate Judge took into consideration the 57-day time
period during which Petitioner pursued postconviction relief in
the Mississippi Supreme Court. [ECF No. 11] at 4 & n.1. Under
Section 2244(d)(2) of the AEDPA, this tolled the one-year
federal habeas limitations period for an additional 57 days
until Monday, March 29, 2021 (the next available business day
for filing in this Court). Petitioner did not file his federal
writ of habeas corpus until August 11, 2021.
2

2

Case 5:21-cv-00070-DCB-FKB Document 12 Filed 08/02/22 Page 3 of 3

recommended that the Petitioner's request for an evidentiary
hearing be denied.

[ECF No.11] at 5.

The Court is unable to find any error with the Magistrate
Judge's findings.

The Court is satisfied that the Magistrate

Judge has undertaken a thorough examination of the issues
presented and has issued a well-reasoned opinion.
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge F. Keith Ball's
Report and Recommendation [ECF No. 11] is ADOPTED as the
findings and conclusions of this Court.
IT IS FURTHER ORDERED that the Motion to Dismiss [ECF No.
9] is GRANTED.
IT IS FURTHER ORDERED that the Petitioner’s request for an
evidentiary hearing is DENIED, and his Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus [ECF No. 1] is DISMISSED with
prejudice.
A Final Judgment shall be entered of even date herewith
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 2nd day of August 2022.
/s/
David Bramlette
UNITED STATES DISTRICT JUDGE

3