Opinion
CASE NO. 3:05 CV 2056.
March 21, 2007
MEMORANDUM OF OPINION AND ORDER
Before the Court is the Report and Recommendation of Magistrate Judge Kenneth S. McHargh issued on February 20, 2007 ("R R") ( ECF. No. 13). Petitioner David P. Morgan has filed a 28 U.S.C. § 2254 petition for writ of habeas corpus seeking relief from a 2003 conviction and 12-year prison sentence for drug and weapons violations imposed after a guilty plea. In his petition, Morgan alleges ineffective assistance of trial counsel, denial of right to appeal and a due process/equal protection violation.
After reviewing the briefs, the Magistrate Judge issued an R R concluding that Morgan's petition is time barred. While the one-year statute of limitations established by the AEDPA expired August 4, 2004, Morgan did not file his petition until August 24, 2005, more than one year later. While Morgan argues that his untimely filing should be excused, the Magistrate Judge concluded that Morgan failed to act with reasonable diligence to support a claim of equitable tolling.
Under the relevant statute:
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.28 U.S.C. § 636(b)(1)(C) (1988) (emphasis added). Here, one month has elapsed since the R R was issued, and Thompson has not filed an objection or a request for an extension to file one.
The failure to timely file written objections to a Magistrate Judge's R R constitutes a waiver of a de novo determination by the district court of an issue covered in the report. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985);see United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The Court has reviewed the Magistrate Judge's thorough and well-written R R ( ECF No. 13) and hereby ADOPTS it. Accordingly, Respondent's motion to dismiss is GRANTED and the underlying petition for writ of habeas corpus is DENIED.