Opinion
Civil Action No. 6: 09-7102-DCR, Criminal Action No. 6: 06-97-DCR.
May 12, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court for consideration of Petitioner/Defendant David Grubbs' pro se motion to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255. [Record No. 70] Consistent with local practice, this matter was referred to United States Magistrate J. Gregory Wehrman for consideration pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge filed his Report and Recommendation on April 23, 2010. [Record No. 92] Based on his review of the record and the applicable law governing the motion, the Magistrate Judge recommended that Grubbs' motion be denied. Neither the Petitioner/Defendant nor the Respondent/Plaintiff have filed timely objections to the Magistrate Judge's Report and Recommendation.
Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file objections to a Magistrate Judge's proposed findings of fact and recommendation waives the right to appeal. See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Nevertheless, having examined the record and having made a de novo determination, the Court is in agreement with the Magistrate Judge's Report and Recommendation. As the Magistrate Judge correctly noted, Grubbs procedurally defaulted his current claims by failing to raise them on direct appeal following his original sentencing and by voluntarily dismissing his second appeal.
Accordingly, it is hereby
ORDERED as follows:
1. The Magistrate Judge's Report and Recommendation [Record No. 92] is ADOPTED and INCORPORATED by reference;
2. The Petitioner/Defendant's motion [Record No. 70] is DENIED and his claims are DISMISSED with prejudice;
3. A Certificate of Appealability shall not issue because the Petitioner/Defendant has not made a substantial showing of the denial of any substantive constitutional right;
4. Judgment will be entered contemporaneously with this Memorandum Opinion and Order in favor of the Respondent/Plaintiff.