Opinion
Case No. 08-20132 Case No. 11-11826
11-18-2011
DANNY LAMONT BLACKSHER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Honorable Thomas L. Ludington
ORDER ADOPTING REPORT AND RECOMMENDATION,
DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255, AND GRANTING RESPONDENT'S
MOTION TO PETITIONER'S DISMISS MOTION TO VACATE SENTENCE
This matter is before the Court on the report and recommendation (ECF No. 70) issued by Magistrate Judge Charles E. Binder on October 13, 2011, on Petitioner's motion to vacate the sentence (ECF No. 56) and Respondent's motion to dismiss the motion to vacate the sentence (ECF No. 69). Judge Binder recommends that the Court deny Petitioner's motion, grant Respondent's motion, and dismiss the petition brought pursuant to 28 U.S.C. § 2255. In his § 2255 petition, Petitioner raises three issues: (1) ineffective assistance of counsel based on counsel's failure to perfect an appeal after having been instructed to do so; (2) abuse of discretion by the district court for failure to consider Petitioner's pro se motion for downward departure; and (3) application of the Fair Sentencing Act of 2010 to result in a reduction in Petitioner's sentence.
As of today's date, no party has filed any objections to Judge Binder's report and recommendation. The failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object 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).
Accordingly, it is ORDERED that Judge Binder's report and recommendation (ECF No. 70) is ADOPTED.
It is further ORDERED that Petitioner's motion to vacate the sentence (ECF No. 56) is DENIED.
It is further ORDERED that Respondent's motion to dismiss the motion to vacate the sentence (ECF No. 69) is GRANTED.
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Danny Lamont Blacksher, #42317039 at Herlong Federal Correctional
Institution, Inmate Mail/Parcels, P.O. Box 800, Herlong, CA 96113 by
first class U.S. mail on November 18, 2011.
TRACY A. JACOBS