United States District Court, S.D. Mississippi, Southern Division
MICHAEL DEARK GARDNER also known as Yakim Ananian El Bey also known as Ananian El Bey PETITIONER
DWAIN BREWER, et al. RESPONDENTS
ORDER ADOPTING MAGISTRATE JUDGE'S  PROPOSED
FINDINGS OF FACT AND RECOMMENDATION, GRANTING
RESPONDENTS'  MOTION TO DISMISS, AND DISMISSING
PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Proposed Findings of
Fact and Recommendation  of United States Magistrate Judge
Robert H. Walker, entered in this case on April 30, 2018, and
on Respondents' Motion to Dismiss  filed on October
31, 2017. The Magistrate Judge recommended that
Respondents' Motion to Dismiss  be granted and that
Petitioner Michael Deark Gardner's Petition for Writ of
Habeas Corpus  be dismissed with prejudice. After due
consideration of the Proposed Findings of Fact and
Recommendation , the Motion to Dismiss , the record,
and relevant legal authority, the Court finds that the
Magistrate Judge's the Proposed Findings of Fact 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 August 28, 2014, Petitioner Michael Deark Gardner
(“Petitioner”) was convicted of possession of a
controlled substance with intent to distribute in the Circuit
Court of Harrison County, Mississippi, First Judicial
District. Final J. [6-1] at 1. Pursuant to Mississippi Code
§ 99-19-81, Petitioner was sentenced to a term of
imprisonment of ten (10) years day for day in the custody of
the Mississippi Department of Corrections
(“MDOC”), said sentence being without hope of
parole or probation. Id.
through counsel, filed a direct appeal, and on September 17,
2015, the Mississippi Supreme Court affirmed. See Gardner
v. State of Mississippi, 178 So.3d 714, 718 (Miss.
2015). Petitioner did not file a petition for writ of
certiorari with the United States Supreme Court. On May 2,
2016, through counsel, Petitioner filed an application for
post-conviction relief, see Application [6-3] at 1,
which the Mississippi Supreme Court denied on August 3, 2016,
see Order [6-4] at 1.
September 20, 2017, Petitioner filed through counsel a
Petition  under 28 U.S.C. § 2254 for writ of habeas
corpus by a person in state custody. Pet.  at 5. On
October 31, 2017, Respondents filed a Motion to Dismiss 
pursuant to 28 U.S.C. § 2244(d), arguing that the
Petition is untimely and should be dismissed with prejudice.
Mot.  at 7. Petitioner did not respond to the Motion .
April 30, 2018, the Magistrate Judge entered his Proposed
Findings of Fact and Recommendation  that the Motion to
Dismiss  be granted and that the Petition be dismissed
with prejudice as time-barred. Petitioner has not filed any
objections to the Proposed Findings of Fact and
Recommendation , 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.
See Id. The Petition is time-barred pursuant to 28
U.S.C. § 2244(d), and dismissal with prejudice is
Court will adopt the Magistrate Judge's Proposed Findings
of Fact and Recommendation  as the opinion of this Court,
will grant Respondents' Motion to Dismiss , and will
dismiss the ...