United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S  REPORT AND
RECOMMENDATION, GRANTING RESPONDENTS'  MOTION TO
DISMISS, AND DISMISSING WITH PREJUDICE PETITION FOR WRIT OF
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered in this case on January 17, 2017, and the
Motion to Dismiss  filed by Respondents Hubert Davis and
Timothy Barnes on July 11, 2016. The Magistrate Judge
recommended that Respondents' Motion to Dismiss  be
granted and that Petitioner Ricky Ronnell Ewing's
Petition for Writ of Habeas Corpus be dismissed as barred by
the statute of limitations. R. & R.  at 4. After due
consideration of the Report and Recommendation , the
Motion to Dismiss , the record, and relevant legal
authority, the Court finds that the Magistrate Judge's
Report and Recommendation  should be adopted, that
Respondents' Motion to Dismiss  should be granted,
and that Petitioner's Petition for Writ of Habeas Corpus
should be dismissed with prejudice.
about October 8, 2011, Petitioner Ricky Ronnell Ewing
(“Petitioner”) entered guilty pleas in two
different cases in the Circuit Court of Clay County,
Mississippi. Sentencing Order [13-1] at 1-3; Sentencing Order
[13-2] at 1-3. Petitioner pleaded guilty to the crimes of
manslaughter in violation of Mississippi Code § 97-3-35,
and being a convicted felon in possession of a firearm in
violation Mississippi Code § 97-37-5, and was sentenced
to a 20-year term of imprisonment and a three-year term of
imprisonment, respectively, to run consecutively, in the
custody of the Mississippi Department of Corrections
(“MDOC”). Sentencing Order [13-1] at 1-3;
Sentencing Order [13-2] at 1-3.
his incarceration, in 2012, Petitioner received five Rule
Violation Reports (“RVRs”), which each resulted
in 30-days of lost “earned time.” See
RVRs [10-1]. The RVRs advised Petitioner that he could appeal
the findings to the Legal Claims Adjudicator within 30 days,
see id., but the record reflects that Petitioner did
not timely appeal.
about June 23, 2015, Petitioner filed an MDOC Administrative
Remedy Program (“ARP”) form requesting his
“loss of earned time back.” ARP [13-4] at 3.
Petitioner's ARP was rejected as untimely because there
had been a lapse of more than 30 days between the event the
initial request. ARP [13-4] at 1. On July 20, 2015,
Petitioner filed another ARP form requesting to “get
[his] loss of earned time back, ” ARP [10-1] at 6,
which was again rejected, ARP [10-1] at 7.
August 19, 2015, Petitioner signed a Complaint pursuant to 42
U.S.C. § 1983, which was filed by the Clerk of Court in
a different civil action, 1:15cv277-HSO-JCG, on August 27,
2015. On November 16, 2015, the Court entered an Order 
severing Petitioner's habeas claims from the § 1983
action, and directing the Clerk of Court to open the present
case for Petitioner's habeas claims pursuant to 28 U.S.C.
§ 2254. Order  at 1-2. The present habeas case was
opened on that date.
11, 2016, Respondents Hubert Davis and Timothy Barnes
(“Respondents”) filed a Motion to Dismiss .
Petitioner filed a Response  in opposition to the Motion
on September 2, 2016. The Magistrate Judge entered a Report
and Recommendation  on January 17, 2017, recommending
that Petitioner's habeas corpus Petition pursuant to
§ 2254 be dismissed with prejudice as barred by the
statute of limitations.
of the Report and Recommendation was mailed to Petitioner at
his address of record via certified mail, return receipt
requested, on January 17, 2017. The acknowledgement of
receipt  was marked delivered on January 24, 2017.
Acknowledgement  at 1. Petitioner has not filed any
objections to the Report and Recommendations, and the time
for doing so has passed.
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.”). In such cases, the Court
applies 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).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an abuse of discretion or contrary to law. Even
under a de novo review, the Court concludes that
Petitioner's application for habeas relief is barred by