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United States v. Mullikin

United States District Court, Sixth Circuit

June 18, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JACKIE DALE MULLIKIN, Defendant. Civil Action No. 5:13-7262-JMH-CJS.

MEMORANDUM OPINION AND ORDER

JOSEPH M. HOOD, District Judge.

This matter is before the Court on the Report and Recommendation of Magistrate Judge Candace J. Smith [DE 67]. Said action was referred to the Magistrate Judge for the purpose of reviewing the merits of Defendant Jackie Dale Mullikin's motion, pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside or correct his sentence [DE 65] under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Court and for preparation of a report and recommendation under 28 U.S.C. § 636(b). The Magistrate Judge filed her Report and Recommendation on April 4, 2013, recommending that Defendant's motion should be denied because Carachuri-Rosendo v. Holder does not establish a new substantive rule for retroactive application. Moreover, Defendant's motion is untimely and equitable tolling does not apply. The Magistrate Judge further recommends that a Certificate of Appealability should not issue because no reasonable jurists would debate the denial of this motion if the Report and Recommendation is adopted by the undersigned.

The Report and Recommendation advised the Defendant that specific objections to same were due within fourteen days of the date of service of the Report and Recommendation or further appeal would be waived. Fourteen days have now expired, and Defendant has not filed objections or otherwise responded to the Report and Recommendations.

Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently, this Court adopts the reasoning set forth in the Report and Recommendation as its own.[1]

Accordingly, IT IS ORDERED:

(1) that the Magistrate Judge's Report and Recommendation [Record No. 67] is ACCEPTED and ADOPTED;

(2) that Defendant's Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 65] is DENIED; and

(3) no certificate of appealability shall issue.


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