Johnson v. Huffman

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Motion to Dismiss, 14 Report and Recommendations. Signed by District Judge David C. Bramlette, III on 5/8/2024 (KNS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ALVIN LEE JOHNSON

PETITIONER

V.

CIVIL ACTION NO. 5:23-cv-34-DCB-MTP

SUPERINTENDENT BRAND HUFFMAN

RESPONDENT

ORDER ADOPTING REPORT & RECOMMENDATION
THIS MATTER is before the Court on Magistrate Judge Parker’s
Report

and

Recommendation

(“Report”)

[ECF

No.

14]

concerning

Superintendent Brand Huffman (“Respondent”)’s Motion to Dismiss
(“Motion”). [ECF No. 12]. The Report was entered on April 16, 2024,
and objections to it were due by April 30, 2024. No party has filed
an objection, and the time to do so has elapsed.
Respondent filed its Motion alleging that the Petition [ECF
No. 1] for Writ of Habeas Corpus is barred by the one-year statute
of limitations under 28 U.S.C. § 2244(d). Alvin Lee Johnson
(“Petitioner”) did not respond, and the time to do so elapsed.
After considering the Motion, the record, and relevant legal
authority, Judge Parker determined that the Petition is timebarred under 28 U.S.C. § 2244(d) and recommended that the Court
grant Respondent’s Motion and dismiss the case with prejudice.
[ECF

No.

14]

at

12.

Specifically,

the

Report

found

that

Petitioner’s conviction became final on August 29, 2017, the
Petition was accordingly due on August 29, 2018, the Petition was
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filed four years later on April 26, 2023, and Petitioner is neither
entitled to statutory nor equitable tolling under 28 U.S.C. §
2244(d)(1)(A). [ECF No. 14] at 4-6. Judge Parker further determined
that Petitioner failed to show new or reliable evidence such that
no reasonable juror would conclude he is guilty. [ECF No. 14] at
7-11.
Where no party has objected to a Magistrate Judge’s Report
and Recommendation, the Court need not conduct a de novo review of
it. 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

or

recommendations

to

which

objection

is

made.”). Where there are no objections, the Court applies the
“clearly erroneous, abuse of discretion and contrary to law”
standard of review to the Report. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having considered the Report, the Court agrees with Judge
Parker’s

recommendation.

Accordingly,

the

Report

is

ADOPTED.

Respondent’s Motion is GRANTED and the Petition is hereby 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, this 8th day of May, 2024.

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/s/ David Bramlette_________
DAVID C. BRAMLETTE III
UNITED STATES DISTRICT JUDGE

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