Opinion
Case No. 14-cr-20306
04-05-2017
UNITED STATES OF AMERICA, Plaintiff - Respondent, v. ERIC MARQUELL BURRELL, Defendant - Petitioner.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITIONER'S MOTION TO VACATE
On May 28, 2014 an indictment issued charging Petitioner Eric Marquell Burrell with one count of possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Petitioner pleaded guilty to the charge on September 9, 2014. He was ultimately sentenced to 151 months' imprisonment, and judgment was entered on December 15, 2014. See ECF No. 22. Petitioner did not file a direct appeal.
Almost two years after his judgment became final, on December 8, 2016, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255. See ECF No. 24. The motion was referred to magistrate judge Patricia T. Morris for report and recommendation. See ECF No. 27. On March 2, 2017 Magistrate Judge Patricia T. Morris issued her report recommending that Petitioner Burrell's petition be dismissed as untimely under § 2255(f). See ECF No. 32. She also found that Petitioner had waived his right to appeal through his Rule 11 Plea Agreement.
Although the magistrate judge's report explicitly states that the parties to this action could object to and seek review of the recommendation within fourteen days of service of the report, neither party has filed any objections. The election not to file objections to the magistrate judge's report releases the Court from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation waives any further right to appeal. As such, the Court concludes that Petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability is not warranted in this case. The Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
Accordingly, it is ORDERED that the magistrate judge's report and recommendation, ECF No. 32, is ADOPTED.
It is further ORDERED that Petitioner Burrell's motion to vacate his sentence, ECF No. 24, is DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge Dated: April 5, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on April 5, 2017.
s/Kelly Winslow for
MICHAEL A. SIAN, Case Manager