57 F. 3d 1070 - Smith v. United States

Before: NELSON and DAUGHTREY, Circuit Judges, and JARVIS, Chief District Judge.*

Harrison Smith appeals a district court order denying his motion to vacate sentence filed pursuant to 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

In 1990, a jury convicted Smith on two counts of murder-for-hire, in violation of 18 U.S.C. Sec. 1958. The district court sentenced Smith to 57 months of imprisonment. On appeal, this court affirmed Smith's conviction and sentence. United States v. Smith, Case No. 90-6290 (6th Cir. Oct. 29, 1991) (unpublished per curiam), cert. denied, 113 S.Ct. 1665 (1993).

Smith subsequently filed a lengthy motion to vacate sentence, alleging numerous grounds for relief. A magistrate judge issued a report recommending the denial of the motion. Despite obtaining an extension of time, Smith never filed objections to the magistrate judge's report. The district court adopted the report and denied the motion. Smith has filed a timely appeal. On appeal, he requests permission to proceed in forma pauperis.

Upon review, we conclude that Smith has waived his right to raise his issues on appeal because he did not file objections to the magistrate judge's report and recommendation. See Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). Nor has Smith presented exceptional circumstances warranting an exception to this rule in the interests of justice. Thomas, 474 U.S. at 155 and n. 15.

Accordingly, we grant Smith's request to proceed in forma pauperis for the limited purpose of review on appeal and affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.