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Edwards v. Banks

United States District Court, S.D. Mississippi, Eastern Division

October 25, 2018

JONATHAN EDWARDS PETITIONER
v.
JACQUELYN BANKS RESPONDENT

          ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE, ETC.

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Petition of Jonathan Edwards for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 [1], Respondent Jacquelyn Banks' Motion to Dismiss [11], Report and Recommendation [12] of Magistrate Judge Micharl T. Parker, Objection [14] to Report and Recommendation filed by Jonathan Edwards, Response in Opposition [15] to Objection filed by Respondent, and the records and pleadings herein and the Court does hereby find as follows to wit:

         I. PROCEDURAL HISTORY

         Petitioner Jonathan Edwards is a post-conviction inmate currently in the custody of the Mississippi Department of Corrections. ([11-3] at 1.) On January 18, 2017, Petitioner pleaded guilty to burglary of a dwelling in the Circuit Court of Marion County, Mississippi. ([11-1] at 1.) He was sentenced as a habitual offender pursuant to Mississippi Code § 99-19-81. ([8-1] at 1.) Thereafter, on September 8, 2017, Petitioner filed a “Motion for Post-Conviction Collateral Relief” in the Circuit Court of Marion County where he challenged his plea and sentence. ([11- 5] at 1.) His appeal of denial of post-conviction relief is currently pending in the Mississippi Court of Appeals.

         On December 19, 2017, proceeding in forma pauperis (IFP), he filed the instant habeas petition. ([1] at 1.) Petitioner seeks a writ of habeas corpus on the following grounds (as stated by Petitioner):

Ground One: Petitioner's plea bargain was not knowingly and voluntarily entered.
Ground Two: Petitioner alleges that false information was submitted by investigators.
Ground Three: Petitioner claims he was illegally charged as a habitual offender pursuant to Mississippi Code § 99-19-81.
Ground Four: Petitioner claims ineffective assistance of ounsel.

([1] at 5-10.)

         The Respondent filed a motion to dismiss [11] on March 23, 2018, arguing that the petition should be dismissed because Petitioner did not first exhaust available state remedies. Motion [11] at 2. Petitioner did not respond to the motion.

         II. STANDARD OF REVIEW

         When a party objects to a Report and Recommendation this Court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III Judge as to those issues to which an objection is made.”) Such review means that this Court will examine the entire record and will make an independent assessment of the law. The Court is not required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general in nature. Battle v. United ...


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