Opinion
Criminal Action No. 5:07-200-JMH-JGW, (Civil Action No. 10-7122-JMH).
June 10, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Proposed Findings of Fact and Recommendations of Magistrate Judge J. Gregory Wehrman [Record No. 42]. Said action was referred to the magistrate for the purpose of reviewing the merit of Franklin's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 41], in which he seeks to have his sentence set aside o the grounds that the imposition of consecutive sentences on Counts 1 and 2 is contrary to a recent Sixth Circuit case, United States v. Almany, 598 F.3d 238 (6th Cir. 2010), as well as additional case law from the Second Circuit.
In conducting an initial review of the matter, the Magistrate Judge concluded that Defendant Franklin's Motion [Record No. 41] was time-barred, there being no basis for equitable tolling of the statute of limitations, or, equally, due to the Defendant's express waiver of his right to collaterally attack his conviction executed in his written plea agreement. The Magistrate Judge filed his Report and Recommendation on May 13, 2010, advising Defendant Franklin that particularized objections to same were due within fourteen days of the date of service of the Report and Recommendation or further appeal would be waived. Fourteen days have now expired, and defendant Franklin has filed no objections.
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, this Court adopts the reasoning set forth in the Report and Recommendation as its own.
Accordingly, IT IS ORDERED:
(1) that the Magistrate Judge's Proposed Findings of Fact and Recommendations [Record No. 42] shall be, and the same hereby is, ACCEPTED and ADOPTED; and
(2) that Franklin's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 41] shall be, and the same hereby is, DENIED.