Opinion
CASE NOS. 1:05-cr-00135, 1:07-cv-00679.
November 20, 2008
ORDER AND OPINION [Resolving 05-135 Doc. Nos. 38, 41-44] [Resolving 07-679 Doc. No. 1-1]
Petitioner Perkins, under 28 U.S.C. § 2255, moved this Court to correct his sentence. [Doc. 38.] The government opposed. [Doc.41-1.] This Court then referred Petitioner's motion to Magistrate Judge Limbert. [Case No. 07-679 Doc. 2.]
All references to the docket refer to Case No. 05-135 unless otherwise indicated. The Petitioner moved for relief under § 2255 in his underlying criminal case and also in a new civil complaint. The briefing on this request for relief was all completed on the docket for Case No. 05-135.
After conducting a thorough analysis of the Petitioner's motion, Magistrate Judge Limbert recommended that the Court deny the Petitioner's request. [Doc. 48.]
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a Report and Recommendation to which the parties have made an objection.28 U.S.C. § 636(b)(1)(C). Parties must file any objections to a Report and Recommendation within ten days of service. Id. Failure to object within this time waives a party's right to appeal the magistrate judge's recommendation. FED. R. CIV. P. 72(a); see also Thomas v. Arn , 474 U.S. 140, 145 (1985); United States v. Walters , 638 F.2d 947, 949-50 (6th Cir. 1981). Absent objections, a district court may adopt the magistrate's report without review. See Thomas , 474 U.S. at 149 . Moreover, having conducted its own review of the parties' briefs on the issue, the Court agrees with the conclusions of the Magistrate Judge.
In his Report and Recommendation, Magistrate Judge Limbert's Report informed parties' of the 10 day objection period. [Doc.48.] Here, more than ten days have passed since Magistrate Judge Limbert filed his Report and Recommendation. Neither party has objected.
This Court has conducted its own review of the parties' briefs on the issue and agrees with the conclusions of Magistrate Judge Limbert and adopts the Report and Recommendation as its own. Therefore, the Court incorporates Magistrate Judge Limbert's findings of fact and conclusions of law fully herein by reference. Accordingly, the Court denies the Petitioner's § 2255 motion.
For the reasons discussed above, the Court ADOPTS the Report and Recommendation of the Magistrate Judge and DENIES the Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Further, this Court certifies under 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); FED. R. APP. P 22(b).
IT IS SO ORDERED.