Opinion
Criminal Action No. 11-cr-00071-JMH-HAI
03-03-2015
UNITED STATES OF AMERICA, Plaintiff, v. MELVIN EDWARDS, JR., Defendant.
(Civil Action No. 14-cv-07 35 6-JMH-HAI)
MEMORANDUM OPINION & ORDER
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This matter is before the Court on the Recommended Disposition entered by Magistrate Judge Hanly A. Ingram [DE 40]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 28], to which the United States filed a Response stating its objections to the Petition at the Court's request for briefing on the issue of timeliness, as well as the merits [DE 30, 38]. Defendant was ordered to file a Reply on the issue of timeliness, as well as the merits of his Petition [DE 39]. He filed no Reply, and the Magistrate Judge proceeded to evaluate the matter and prepared a Recommended Disposition. No objections to the Recommended Disposition have been filed, and this matter is now ripe for a decision.
In his Recommended Disposition [DE 40; see also DE 30], the Magistrate Judge recommends that the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on June 16, 2014, be denied because it is time barred upon application of the one-year statute of limitations applicable to motions filed under 28 U.S.C. § 2255 in light of the date on which his judgment of conviction became final: November 14, 2011. See 28 U.S.C. § 2255(f)(1); Sanchez-Castello v. United States, 358 F.3d 424, 427 (6th Cir. 2004) (holding that defendant's "judgment becomes final upon the expiration of the period in which the defendant could have appealed to the court of appeals, even when no notice of appeal was filed."); Fed. R. App. P. 4(b)(1)(A) (("In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's notice of appeal."); [DE 17, Judgment, dated October 31, 2011]. While he did file a Notice of Appeal [DE 21], it was untimely filed over two years later. See [DE 26, Order Dismissing Appeal as Untimely, dated May 28, 2014]. The undersigned agrees with the recommendation.
Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[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." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently and in the absence of any objections from Defendant Edwards, this Court adopts the well-articulated and detailed reasoning set forth in the Recommended Disposition as to Edwards' Motion as its own.
Finally, the Court considers whether a certificate of appealability should issue in this matter with respect to those claims raised under 28 U.S.C. § 2255. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Defendant must be able to show that reasonable jurists could find in his favor, and the "question is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). Having carefully considered the matter, this Court concludes that no certificate should issue as Edward cannot make a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED:
(1) that the Magistrate Judge's Recommended Disposition [DE 40; see also DE 30] is ACCEPTED and ADOPTED; and
(2) that Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 28] is DENIED.
(3) that no certificate of appealability will issue.
This, the 3rd day of March, 2015.
Signed By:
Joseph M. Hood
Senior U.S. District Judge