Opinion
CRIMINAL ACTION NO. 09-86-KSF Civil Action No. 10-7132-KSF
03-14-2012
UNITED STATES OF AMERICA PLAINTIFF v. DONALD L. GUNN, SR. DEFENDANT
OPINION AND ORDER
This matter is before the Court on the Motion [DE #28] of Defendant Donald L. Gunn, Sr., pro se, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence imposed in this action on August 14, 2009. The matter was referred to the Magistrate Judge who, on February 10, 2012, issued a Report and Recommendation [DE 46] that Gunn's knowing and voluntary plea waived his right to appeal or to attack his plea collaterally and that his claim of ineffective assistance of counsel was without merit..
No objections were filed to the Magistrate Judge's Report and Recommendation, and the time for filing same has passed. 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. See also Premo v. Moore, 562 U.S. ____, 131 S. Ct. 733, 745-46 (2011) ("There is a most substantial burden on the claimant to show ineffective assistance" following a plea bargain.)
A certificate of appealability should only be issued if "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When denials of relief are based on procedural defaults, a district court still should issue a certificate of appealability if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 478 (2000). In the present case, the Court determines that Defendant has not presented a close call or one which is "debatable." Therefore, a certificate of appealability will not issue.
Accordingly, it is hereby ORDERED as follows:
1. The Magistrate Judge's Report and Recommendation [DE 46] is ADOPTED and INCORPORATED by reference;
2. The Defendant's Motion [DE 28] is DENIED and DISMISSED with prejudice;
3. A Certificate of Appealability shall not issue because the Defendant has not made a substantial showing of the denial of any substantive constitutional right; and
4. Judgment will be entered contemporaneously with this opinion and order in favor of the United States.
Signed By:
Karl S. Forester
United States Senior Judge