Opinion
Case No. 3:06-cr-179 Also 3:13-cv-261
12-11-2013
UNITED STATES OF AMERICA, Plaintiff, v. DONNELL LETEL COOK, Defendant.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER VACATING STAY; THIRD SUPPLEMENTAL REPORT AND
RECOMMENDATIONS
On October 7, 2013, this Court stayed final decision of this case pending the en banc decision of the United States Court of Appeals for the Sixth Circuit in United States v. Blewett (Doc. No. 143). That decision was rendered December 3, 2013. United States v. Blewett, __ F.3d __, 2013 U.S. App. LEXIS 24018 (6th Cir. 2013). In that decision, the Sixth Circuit held that the Fair Sentencing Act of 2010 which increased the amount of crack cocaine required to trigger mandatory minimum sentences does not apply retroactively to persons, such as Cook, who were sentenced before the effective date of the Act.
Accordingly, Cook's claim that he is constitutionally entitled to retroactive application of the Fair Sentencing Act should, as with all other claims in his pending § 2255 Motion, be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).