Opinion
Civil No. 09-12867, Crim. No. 06-20388.
June 22, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, proceeding pro se, filed a motion to vacate sentence under 28 U.S.C. § 2255 [dkt 31]. The matter is currently before the Court on Magistrate Judge Whalen's Report and Recommendation [dkt 38], in which the Magistrate Judge recommends that the motion be denied.
The Report and Recommendation was originally returned as undeliverable, and the Report and Recommendation was thereafter mailed to Petitioner's current address as provided by Petitioner's mother. Petitioner has filed objections to the Report and Recommendation [dkt 40], and the Court will consider the objections to have been timely filed. The Court reviews the objected-to portions of the Report and Recommendation de novo.
The Court has thoroughly reviewed the court file, the Report and Recommendation, and Petitioner's objections. As a result of that review, the Court ADOPTS the Report and Recommendation and enters it as the findings and conclusions of this Court. Accordingly, IT IS HEREBY ORDERED that Petitioner's motion to vacate sentence [dkt 42] is DENIED and this action is DISMISSED WITH PREJUDICE.
Petitioner has also requested that the Court withdraw its September 3, 2009, order adopting Magistrate Judge Whalen's Report and Recommendation in which the Magistrate Judge recommended that Petitioner's motion to release grand jury minutes be denied. Petitioner again maintains that he did not receive the Report and Recommendation in time to file objections due to his address change. However, the Court finds that any possible objection would be futile because Petitioner waived his right to appeal any non-jurisdictional defects in the pre-plea proceedings when he entered a plea of guilty. See Report Recommendation [dkt 30] at p. 3. Therefore, de novo review would not alter the Court's conclusion. Petitioner's request [dkt 36] is DENIED.
IT IS SO ORDERED.