Opinion
Criminal Action No. 5:09-CR-67-JMH-EBA-1 Civil Action No. 5:16-cv-224-JMH-EBA
08-18-2016
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT HERALD BARNETT, Defendant.
MEMORANDUM OPINION & ORDER
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This matter is before the Court on the Report and Recommendation entered by Magistrate Judge Edward B. Atkins [DE 188]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 176]. The Magistrate Judge recommends that this matter be transferred to the Court of Appeals for the Sixth Circuit since it is a second-in-time, successive petition. Because Defendant has previously sought relief in this matter by means of a motion under § 2255 [DE 98], which relief was denied [DE 166] by this Court, the Court agrees with the Magistrate Judge that this matter must be transferred to the United States Court of Appeals for the Sixth Circuit pursuant to In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam), for review and certification as a second or successive motion. See 28 U.S.C. §§ 2244(a), 2255(h).
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 and in the absence of any objections from Defendant Barnett, this Court adopts the reasoning set forth in the Report and Recommendation as to Barnett's Motion as its own.
The Court does not consider whether a certificate of appealability should issue since it reaches no conclusion as to the merits of Defendant's motion under § 2255.
Accordingly, IT IS ORDERED:
(1) that the Magistrate Judge's Report and Recommendation [DE 181] is ACCEPTED and ADOPTED.
(2) that the Clerk shall TRANSFER Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 176] to the United States Court of Appeals for the Sixth Circuit for further proceedings in keeping with In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).
(3) that the Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET.
This is the 18th day of August, 2016.
Signed By:
Joseph M . Hood
Senior U.S. District Judge