815 F. 2d 78 - Jones v. United States Parole Commission Pw Fci

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Appellant has also filed a motion for appointment of counsel. Upon examination of the record and appellant's informal brief, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Appellant, an inmate at the Federal Correctional Institute in Memphis, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241 in the district court for the Western District of Tennessee. Appellees, however, sought the dismissal of the petition by means of a motion for summary judgment. In a report entered on August 18, 1986, a magistrate for the district court recommended the granting of that motion. After the passage of time for the filing of objections, the district court, in an order filed on September 18, 1986, and entered on the following day, adopted its magistrate's report and recommendation in full. Accordingly, on September 22, 1986, the district court entered judgment dismissing appellant's petition for a writ of habeas corpus. Appellant thereafter filed this appeal.

Examination of the record indicates that appellant has waived his right to appellate review of the issues raised in his petition for a writ of habeas corpus due to his failure to file timely objections to the magistrate's report and recommendation. Thomas v. Arn, --- U.S. ---, 106 S.Ct. 466 (1985); Wright v. Holbrook, 794 F.2d 1152 (6th Cir.1986); Wilson v. McMacken, 786 F.2d 216 (6th Cir.1986). Specifically, that document, which was entered on August 18, 1986, contained conspicuous notice of the necessity of filing objections within ten days. Despite that admonition, appellant neglected to do so until September 19, 1986, the day on which the district court entered its order adopting its magistrate's report and recommendation in full. Furthermore, neither the order of September 19, 1986, nor the judgment subsequently entered in consequence thereof contain any indication that the district court indeed considered appellant's untimely objections in its decision to adopt the magistrate's report and recommendation. As a result, it is clear that appellant failed to provide the district court with proper objections to the magistrate's report and recommendation and has therefore waived his right to appellate review of the dismissal of his petition for a writ of habeas corpus.

Upon examination of the record, this panel concludes that the appeal is frivolous. Rule 9(d)(2), Rules of the Sixth Circuit. Therefore, the motion for appointment of counsel is hereby denied and the final judgment of the district court entered September 22, 1986, is affirmed.