Dixon v. Withers ( 2023 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION TORRANCE DIXON, #12681-021 PETITIONER V. CIVIL ACTION NO. 3:21-CV-490-KHJ-MTP WARDEN SHANNON D. WITHERS RESPONDENT ORDER Before the Court is the [17] Report and Recommendation (“Report”) of United States Magistrate Judge Michael T. Parker. It recommends the Court deny Petitioner Torrance Dixon’s [6] Petition for Writ of Habeas Corpus and dismiss this case without prejudice. [17] at 4. Written objections to the Report were due by February 17, 2023. The Report notified the parties that failure to file written objections to the findings and recommendations by that date would bar further appeal in accordance with 28 U.S.C. § 636. . When no party has objected to a magistrate judge’s report and recommendation, the Court need not review it de novo. 28 U.S.C. § 636(b)(1); , 864 F.2d 1219, 1221 (5th Cir. 1989). Instead, the Report is reviewed under the “clearly erroneous, abuse of discretion and contrary to law” standard of review. , 864 F.2d at 1221. Petitioner Torrance Dixon filed his habeas petition, challenging his sentence calculation because he was not credited for “good time” from April 13, 2006, to October 4, 2006. [6] at 6. Respondent Warden Shannon D. Withers responded that the Court should dismiss Dixon’s petition because he failed to exhaust his administrative remedies. Resp’t Resp. Pet. Writ Habeas Corpus [15] at 4–5. The Magistrate Judge found that Dixon failed to exhaust his administrative remedies and did not demonstrate the extraordinary circumstances required to excuse his failure to exhaust. [17] at 2–4. Accordingly, he recommended dismissing Dixon’s petition without prejudice. at 4. Dixon did not object to the Report. The Report is neither clearly erroneous nor contrary to law. Accordingly, it is adopted as the opinion of this Court. IT IS, THEREFORE, ORDERED AND ADJUDGED that the [17] Report and Recommendation of United States Magistrate Judge Michael T. Parker is adopted as the opinion of this Court. IT IS, FURTHER, ORDERED AND ADJUDGED that Petitioner’s [6] Petition for Writ of Habeas Corpus is DENIED, and this case is DISMISSED without prejudice. The Court concludes also that a certificate of appealability (“COA”) shall not issue. To obtain a COA, Dixon must show “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” , 529 U.S. 473, 484 (2000) (emphasis added). Dixon satisfies the first prong, but he fails to meet the second. A separate Final Judgment will issue this day. SO ORDERED, this the 24th day of February, 2023. s/ UNITED STATES DISTRICT JUDGE