826 F. 2d 1062 - Damron v. A Scroggy

Before LIVELY, Chief Judge, KEITH, Circuit Judge, and DOWD, District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner filed this action for federal habeas corpus relief (28 U.S.C. Sec. 2254) contesting the constitutionality of 1985 Kentucky convictions for assault and persistent felony offender. The magistrate to whom the matter was referred recommended dismissing the petition. This recommendation carried the notation that further appeal would be waived if petitioner failed to file timely objections to the recommendation. Petitioner did not file objections with the district court as advised. The court adopted the recommendation and this appeal followed. On appeal the parties have submitted briefs, petitioner proceeding pro se.

Upon consideration, we conclude petitioner's failure to file timely objections to the magistrate's report and recommendation constituted a waiver of further appellate review. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985). We affirm. Rule 9(b)(4), Rules of the Sixth Circuit.