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Hartzog v. Mississippi Dept. of Corrections

United States District Court, S.D. Mississippi.

June 5, 2015

NIKIAL L. HARTZOG PETITIONER
v.
MISSISSIPPI DEPT. OF CORRECTIONS, ET AL. RESPONDENTS

ORDER ADOPTING PROPOSED FINDINGS OF FACT AND RECOMMENDATION AND GRANTING RESPONDENTS’ MOTION TO DISMISS

LOUIS GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE

This cause comes before the Court on the Proposed Findings of Fact and Recommendation of United States Magistrate Judge Robert Walker entered in this cause on April 23, 2015. Magistrate Judge Walker reviewed the Respondents’ Motion to Dismiss for Failure to Exhaust and determined that it should be granted, because Hartzog’s Petition indicated, and counsel for the Respondents confirmed, that Hartzog had not filed an application for leave to seek post-conviction relief from his conviction and sentence in the Mississippi Supreme Court. Hartzog did not file a response to the Respondents’ Motion to Dismiss, nor has he filed an objection to the Proposed Findings of Fact and Recommendation.[1]

Under these circumstances, the Court need only review the Proposed Findings of Fact and Recommendation and determine whether it is either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). After review of this matter, the Court finds that the Proposed Findings of Fact and Recommendation is neither clearly erroneous nor contrary to law. It will therefore be adopted as the opinion of this Court.

IT IS THEREFORE ORDERED AND ADJUDGED that the Proposed Findings of Fact and Recommendation of United States Magistrate Judge Robert H. Walker entered in this cause on April 23, 2015 [10] should be, and the same hereby is, adopted as the finding of this Court.

IT IS FURTHER ORDERED AND ADJUDGED that Respondents’ Motion to Dismiss [9] for Failure to Exhaust is GRANTED. Petitioner’s 28 U.S.C. § 2254 habeas corpus application is DISMISSED without prejudice for failure to exhaust.

SO ORDERED AND ADJUDGED.


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