Opinion
Civil No. 08-232-ART.
October 16, 2008
ORDER
This matter is before the Court on Magistrate Judge Wier's Recommended Disposition, R. 5, of Petitioner Fred Ernest Jones's pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, R. 1.
Mr. Jones filed his Petition on July 22, 2008. On his initial review of the Petition under Rule 4 of the Rules Governing Section 2254 Cases, Judge Wier found it to be untimely. See R. 3 at 5. Judge Wier then provided Mr. Jones with "fair notice and an opportunity" to present his position, Day v. McDonough, 547 U.S. 198, 210 (2006), by allowing him to file a response demonstrating that the Petition should not be dismissed as untimely. R. 3 at 5. Mr. Jones responded to Judge Wier's Order. R. 4. After reviewing the response, Judge Wier concluded that Mr. Jones's Petition was untimely and thus recommended that this Court dismiss the Petition with prejudice. R. 5 at 8. More than ten days have passed since Judge Wier filed his Recommended Disposition on September 26, 2008, and Mr. Jones has yet to file any objections.
A petitioner's failure to file objections to a magistrate's recommendation within ten days after the report is filed generally waives the right to appeal. See Souter v. Jones, 395 F.3d 577, 585 (6th Cir. 2005) ("We have long held that with regards to a magistrate judge's recommendation, a party shall file objections with the district court or else waive [the] right to appeal.") (quotation omitted). The Court is aware that some cases have held that waiver applies only where the magistrate notifies the petitioner in the recommendation of the potential waiver. See, e.g., Mattox v. City of Forest Park, 183 F.3d 515, 519-20 (6th Cir. 1999). While the Recommended Disposition notified Mr. Jones that he had ten days to object, see R. 5 at 9, it did not expressly notify him that failing to object constitutes a waiver of appeal.
Mattox was construing Fed.R.Civ.P. 72(b) rather than Rule 8 of the Rules Governing Section 2254 Cases, which is applicable here. Unlike Fed.R.Civ.P. 72(a) and Fed.R.Crim.P. 59(a) and (b) — which explicitly provide that a party's failure to object to a magistrate's order or recommendation waives that party's right to review — Fed.R.Civ.P. 72(b) and Rule 8 do not contain such an explicit waiver provision and instead state that a party "may" file objections. Given this similarity between Fed.R.Civ.P. 72(b) and Rule 8, Mattox would appear to be applicable here. Cf. Piccirilli v. Edwards, No. 95-3074, 1995 WL 559340, at *1 (6th Cir. Sept. 20, 1995) (holding that habeas petitioner's failure to object to the magistrate's report and recommendation did not constitute a waiver of his appellate rights because the recommendation "did not notify petitioner of the requirement to object and the consequences of a failure to object to findings and recommendations").
To the extent Mr. Jones has not waived his objections by not objecting to Judge Wier's Recommended Disposition, the Court has reviewed Judge Wier's recommendation and agrees that Mr. Jones's Petition is untimely for the reasons stated therein. The Court, therefore, adopts the Recommended Disposition as its own. Further, the Court will not issue a certificate of appealability because it does not believe that jurists of reason would find it debatable whether the Court's assessment of the Petition's timeliness is correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, it is ORDERED as follows:
(1) The Recommended Disposition, R. 5, is ADOPTED as the opinion of the Court.
(2) Mr. Jones's Petition for Writ of Habeas Corpus, R. 1, is DENIED.
(3) The Court shall not issue a certificate of appealability on any claim raised by Mr. Jones in his Petition.
(4) A separate judgment shall be entered contemporaneously with this Order.