Summary
holding that the petitioner's claim that his "guilty plea was not voluntary and knowing because he was not properly advised regarding the post-release control portion of his sentence" was successive within the meaning of 28 U.S.C. § 2244(b) because the claim "attack[ed] the validity of his underlying conviction rather than any error that arose out of his resentencing hearing" limited to proper imposition of post-release control
Summary of this case from Quillen v. WardenOpinion
CASE NO. 5:13CV1472
12-13-2013
CLARENCE BANKS, Petitioner, v. JASON BUNTING, Respondent.
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER
Before the Court is the Report and Recommendation of Magistrate Judge Vecchiarelli ("R & R") (Doc. # 10). The R&R recommends that the Court transfer Petitioner Clarence Bank's 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. # 1) to the Sixth Circuit because it is a second or successive petition requiring Sixth Circuit authorization before this Court can review it on the merits.
Under 28 U.S.C. § 636(b)(1) a habeas petitioner has 14 days after being served a copy of the R&R to file written objections. A copy of the R&R was mailed to Petitioner on November 12, 2012. In this case, more than 21 days have elapsed since the R&R was issued, and Petitioner has filed neither an objection nor a request for an extension of time to file one.
Failure to file objections by the deadline constitutes a waiver of the right to obtain a de novo review of the R&R in the district court, United States v. Walters, 638 F.2d 947, 949 (6th Cir. 1981), and a waiver of the right to appeal. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985).
The Court has reviewed the Magistrate Judge's R&R and agrees that the petition should be transferred to the Sixth Circuit. Accordingly, the Court ADOPTS the Magistrate Judge's R&R (Doc. # 10).
IT IS SO ORDERED.
____________________________
Dan Aaron Polster
United States District Judge