811 F. 2d 608 - Thompson v. Lecureux

Petitioner appeals from the district court's order dismissing his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 upon adoption of the Magistrate's unopposed report and recommendation. In addition, petitioner moves for appointment of counsel. The matter has been referred to a panel of this court pursuant to rule 9, Rules of the Sixth Circuit. Upon examination of the certified record, petitioner's informal brief, and documents submitted in support thereof, the panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner, in response to this court's show cause order, September 18, 1986, alleges that the district court erroneously dismissed his habeas corpus petition since he timely filed objections to the magistrate's report and recommendation. To further support his allegation, he has submitted a notarized copy of the allegedly filed objections.

Upon consideration, this court finds that petitioner's appeal must be dismissed under Thomas v. Arn, 106 S.Ct. 466 (1985). See also Wilson v. McMacken, 786 F.2d 2216 (6th Cir.1986). Petitioner fails to provide any evidence that his objections were received by the district court clerk's office in either Marquette or Grand Rapids, Michigan.

It is the filing, rather than the mailing of objections for filing, which constitutes compliance with 28 U.S.C. Sec. 636(c). See Thomas v. Arn, 106 S.Ct. 466; Lee v. Dallas City Bd. of Education, 578 F.2d 1177 (5th Cir.1978). Absent evidence that the objections were ever received, this court can only discern that petitioner has waived his right to a review of the merits of his appeal. See Thomas v. Arn, 106 S.Ct. at 471; Lee, 578 F.2d at 1178 n. 1.

It is therefore ORDERED that petitioner's motion for counsel be and hereby is denied and the district court's order affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.