786 F. 2d 1164 - Henry Douglas Gentry v. State of Tennessee
786 F2d 1164 Henry Douglas Gentry v. State of Tennessee
786 F.2d 1164
HENRY DOUGLAS GENTRY, Petitioner-Appellant
v.
STATE OF TENNESSEE, Respondent-Appellee.
85-5983
United States Court of Appeals, Sixth Circuit.
2/18/86
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
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E.D.Tenn.
APPEAL DENIED
ORDER
The petitioner appeals the order denying his pro se petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The receipt of the record on appeal is construed as an application to this Court for a certificate of probable cause. Rule 22(b), Federal Rules of Appellate Procedure.
The petition was referred by the district court to a magistrate under 28 U.S.C. Sec. 636 for the preparation of a report and recommendation. The magistrate filed a report on September 12, 1985, finding the petition to be without merit and recommending the denial of relief. The report contained the following caveat:
Any objections to this report and recommendation must be filed within 10 days of its service or further appeal will be waived. 28 U.S.C. Sec. 636(b)(1)(B) and (C). United States v. Walters, 638 F.2d 947-950 (6th Cir. 1981).
The plaintiff did not file objections to the report and the district court entered an order on September 30, 1985, adopting and approving the report and dismissing the action. This appeal followed.
In Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, ---- U.S. ----, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), this Court again reaffirmed its holding in Walters that the failure to file objections to a magistrate's report and recommendation under 28 U.S.C. Sec. 636(b)(1)(C) results in a waiver of the right to appeal a subsequent order of the district court adopting and approving that report. There being no objections filed in this action,
It is ORDERED that the petitioner's application for a certificate of probable cause be and it hereby is denied.