IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

WILLIE ED SMITH PETITIONER

v. Civil No. 1:19cv289-HSO-RHW

JOE ERRINGTON RESPONDENT

ORDER OVERRULING PETITIONER’S OBJECTION [13], ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS OF FACT AND RECOMMENDATION [12], AND DISMISSING PETITION [1] FOR WRIT OF HABEAS CORPUS WITH PREJUDICE

BEFORE THE COURT is Petitioner Willie Ed Smith’s Objection [13] to United States Magistrate Judge Robert H. Walker’s Proposed Findings of Fact and Recommendation [12], which recommended dismissing Petitioner’s Petition [1] for Writ of Habeas Corpus with prejudice. After due consideration of the Proposed Findings of Fact and Recommendation [12], the submissions of the parties, and relevant legal authority, the Court finds that Petitioner’s Objection [13] should be overruled, that the Magistrate Judge’s Proposed Findings of Fact and Recommendation [12] should be adopted, and that Petitioner’s Petition [1] for Writ of Habeas Corpus should be dismissed with prejudice. I. BACKGROUND On May 17, 2019, Petitioner Willie Ed Smith (“Smith” or “Petitioner”) filed a Petition [1] for Writ of Habeas Corpus pursuant to

. Smith argues that his April 15, 2015, conviction in state court for unlawful possession of a firearm by a convicted felon is unconstitutional because it was the result of judicial and prosecutorial misconduct. Mem. [2] at 6. Respondent Joe Errington (“Respondent”) moved to dismiss Smith’s Petition [1] on the grounds that it is barred by the one-year limitations period under

. Mot. [8] at 6.

On November 27, 2019, United States Magistrate Judge Robert H. Walker entered a Proposed Findings of Fact and Recommendation [12], recommending that Petitioner’s Petition [1] for Writ of Habeas Corpus be dismissed based upon its untimeliness under

. R. & R. [12]. Petitioner has filed an Objection [13], arguing that his Petition [1] is timely. Obj. [13] at 4. II. DISCUSSION

Because Petitioner has filed an Objection [13] to the Magistrate Judge’s Proposed Findings of Fact and Recommendation [12], 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.”

(b)(1); see also Longmire v. Gust,

(5th Cir. 1991) (party filing written objections is “entitled to a de novo review by an Article III Judge as to those issues to which an objection is made”). However, a court is not required to make new findings of fact in

order to conduct a de novo review. Warren v. Miles,

(5th Cir. 2000). Nor is a court required to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson,

(5th Cir. 1993).

provides that a person in custody pursuant to a state court judgment has one year from the date on which the judgment becomes final to file for

2 a writ of habeas corpus.

(d)(1)(A). The Magistrate Judge found that the date of final judgment in Smith’s case was February 10, 2017, when the Mississippi Supreme Court dismissed his request for an out-of-time extension of

time to file a petition for certiorari. R. & R. [12] at 2. Thus, Smith’s state-court conviction became final on that date, and his deadline for filing a writ of habeas corpus in this Court was February 10, 2018.

However, Smith contends that his October 29, 2018, application for leave to file post-conviction relief, which he filed with the state trial court, tolled the one-year statute of limitations. Obj. [13] at 4. While “the time during which a properly filed application for State post-

conviction or collateral review . . . is pending shall not be counted toward any period of limitation . . .,”

(d)(2) (emphasis added), Smith’s application for post-conviction relief at the state level was filed eight months after the statute of limitations on his federal habeas claim had expired. Obj. [13] at 3. As such, Smith is not entitled to statutory tolling, and his current Petition is untimely. As required by

(b)(1), the Court has conducted an independent de novo review of the record. After conducting this independent review, the Court

finds that the Petitioner’s Petition [1] is untimely under

(d)(1). Smith’s Objection [13] will be overruled and the Court will adopt Magistrate Judge Robert H. Walker’s Proposed Findings of Fact and Recommendation [12] as the opinion of this Court.

3 III. CONCLUSION The Court concludes that Petitioner’s Objection [13] should be overruled, that the Magistrate Judge’s Proposed Findings of Fact and Recommendation [12] should

be adopted as the finding of the Court, and that the Petition [1] for Writ of Habeas Corpus should be dismissed. IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Objection [13] filed by Petitioner Willie Ed Smith in this case is OVERRULED. IT IS, FURTHER, ORDERED AND ADJUDGED that the Magistrate Judge’s Proposed Findings of Fact and Recommendation [12], entered in this case

on November 27, 2019, is ADOPTED as the finding of this Court. Petitioner Willie Ed Smith’s Petitioner [1] for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE. The Court will enter a separate Final Judgment in accordance with Federal Rule of Civil Procedure 58. SO ORDERED AND ADJUDGED, this the 17th day of March, 2020. s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

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