United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION , GRANTING RESPONDENTS' MOTION TO
DISMISS , AND DISMISSING PETITIONER'S PETITION 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge F.
Keith Ball, entered on May 2, 2018, and Respondent Jacquelyn
Banks' Motion to Dismiss  filed October 11, 2017.
After consideration of the proposed findings of fact and
conclusions of law set forth in the Report and
Recommendation, the record as a whole, and relevant legal
authority, the Court finds that the Report and Recommendation
 should be adopted as the finding of this Court, that
Respondent's Motion  should be granted, and that
Petitioner's Petition  should be dismissed with
24, 2017, Petitioner Vincent Creppel
(“Petitioner”) filed a Petition  Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody, alleging that the sentence imposed upon him in
state court by his August 2, 2005, conviction of armed
robbery violated his due process rights. Pet.  at 1-15.
Petitioner admits that his Petition is untimely, but argues
that because he is actually innocent of the crime, his
Petition should not be “foreclosed.” Id.
Jacquelyn Banks (“Respondent”) filed a Motion to
Dismiss  on October 11, 2017. Respondent asserts that
Petitioner's claims are barred by the one-year statute of
limitations set forth in 28 U.S.C. § 2244(d), which
requires that a party seeking federal habeas relief file his
petition within one year from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.”
Mot. to Dismiss  at 1-9 (quoting 28 U.S.C. §
2244(d)(1)(A)). Respondent further maintains that Petitioner
failed to identify any new evidence that could convince a
“court that ‘in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt, '” or could otherwise
support his “actual innocence” claim.
Id. at 7-9 (quoting McQuiggin v. Perkins,
569 U.S. 383, 386 (2013) (internal citations and quotations
omitted)). Petitioner's responsive pleadings  
merely reassert his claims of actual innocence.
Magistrate Judge found that the Petition should be dismissed
because Petitioner's “belief that he is not guilty
of armed robbery because he was not the one who physically
took the money from the victim, ” after Petitioner had
stabbed the victim 42 times, does not meet the
“demanding standard” required by the United
States Supreme Court to state a claim of actual innocence.
R&R  at 3 (citing McQuiggin, 569 U.S. at
401). The Magistrate Judge concluded that no exception to the
one-year limitations period is applicable thus the Petition
is untimely, and recommended that Respondent's Motion be
granted and that Petitioner's claims be dismissed with
prejudice. R&R  at 1-4. The docket reflects that a
copy of the Report and Recommendation was mailed to
Petitioner at his last known address on May 2, 2018. To date,
no objection to the Report and Recommendation has been filed
no party has objected to the 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 and recommendations to which objection is
made.”). In such cases, the Court need only review the
Report 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).
conducted the required review, the Court concludes that the
Magistrate Judge's Report and Recommendation thoroughly
considered all issues, and is neither clearly erroneous nor
contrary to law. It is clear from the record that Petitioner
acknowledged that his Petition was untimely, and it is also
clear that Petitioner has failed to proffer any new evidence
to support a claim of actual innocence. R. & R.  at
1-4. Even if this Court were to conduct a de novo
review, based upon the pleadings and the record as a whole,
the Petition should be dismissed for the same reasons set
forth in the Report and Recommendation.
Court, being fully advised in the premises, finds that the
Magistrate Judge properly recommended that Petitioner's
Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254 be dismissed with prejudice. Said Report
and Recommendation should be adopted as the opinion of this
Court. Accordingly, IT IS, THEREFORE, ORDERED AND ADJUDGED
that the Magistrate Judge's Report and Recommendation
, entered in this case on May 2, 2018, is ADOPTED as the
finding of this Court.
FURTHER, ORDERED AND ADJUDGED that Respondent Jacquelyn
Banks' Motion to Dismiss  is GRANTED.
FURTHER, ORDERED AND ADJUDGED that Petitioner Vincent
Creppel's Petition for Writ of Habeas Corpus  filed
May 24, 2017, is DISMISSED WITH PREJUDICE. A separate
judgment will be entered in accordance with this ...