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Sherman v. Sims

United States District Court, E.D. Kentucky, Southern Division, London

December 3, 2014

GEORGE SHERMAN, Petitioner,
v.
RAVONEE SIMS, Warden, Respondent.

ORDER

GREGORY F. VAN TATENHOVE, District Judge.

This matter is before the Court pending review of the Report and Recommendation of United States Magistrate Judge Hanly A. Ingram [R. 32] filed herein on November 13, 2014. Consistent with local practice, the recommended disposition addresses the pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 filed by George Sherman. The Report and Recommendation concludes that Sherman's current petition is "second and successive" under 28 U.S.C. § 2244(a) because Sherman filed a prior petition that was dismissed for failure to comply with the statute of limitations. [R. 32 at 2-3.] Therefore, this Court lacks jurisdiction to consider the instant petition unless Petitioner first obtains authorization from the Sixth Circuit, and the Magistrate accordingly recommends that the instant petition be transferred to the Sixth Circuit pursuant to 28 U.S.C. § 1631. [ Id. at 3-4.] The Report and Recommendation also advises the parties that any objections must be filed within fourteen (14) days of service or waive the right to further appeal. [ Id. at 4-5.] As of this date, neither party has filed objections nor sought an extension of time to do so.

Generally, this Court must make a de novo determination of those portions of a recommended disposition to which objections are made. 28 U.S.C. § 636(b)(1)(c). When no objections are made, however, this Court is not required to "review... a magistrate's factual or legal conclusions, under a de novo or any other standard...." Thomas v. Arn, 474 U.S. 140, 150 (1985). Parties who fail to object to a Magistrate's report and recommendation are also barred from appealing a district court's order adopting that report and recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Nevertheless, this Court has examined the record, and it agrees with the Magistrate Judge's Recommended Disposition.

Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:

1. The Magistrate's Amended Recommended Disposition [R. 32] as to George Sherman is ADOPTED as and for the Opinion of the Court;

2. Sherman's Petition [R. 1] shall be TRANSFERRED pursuant to 28 U.S.C. § 1631 to the United States Court of Appeals for the Sixth Circuit for consideration whether the district court may review the petition in accordance with 28 U.S.C. § 2244(b); and

3. Sherman's application to proceed without prepayment of fees [R. 3] is DENIED.


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