Michael Cortez Robinson, Colonel, Petitioner-appellant, v. United States of America, Respondent-appellee, 37 F.3d 1499 (6th Cir. 1994)

ORDER

Michael C. Robinson, a pro se prisoner, appeals a district court judgment denying his motion to vacate sentence filed under 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In July 1991, a federal jury convicted Robinson of possession of cocaine with intent to distribute. Robinson was sentenced to 87 months of imprisonment. Thereafter, he filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, in which he argued that: 1) he received ineffective assistance of counsel because counsel did not file a notice of appeal despite Robinson's request that she do so, and 2) the court did not afford him an opportunity to review the presentence report prior to sentencing. The government conceded that Robinson received ineffective assistance of counsel, and the district court granted Robinson's motion and resentenced him to 78 months of imprisonment. The record does not reflect that Robinson filed a notice of appeal from this judgment.

Prior to his resentencing, Robinson filed his second Sec. 2255 motion to vacate sentence, arguing that he received ineffective assistance of counsel because counsel did not adequately advise him of the benefits of accepting the government's plea offer prior to going to trial. The magistrate judge filed a report recommending that the district court deny the motion as an abuse of the writ under Rule 9(b), Rules Governing Section 2255 Proceedings. The record does not reflect that Robinson filed any objections to the magistrate judge's report. The district court adopted the magistrate's recommendation and denied the motion. Robinson has filed a timely appeal, reasserting his same claims.

Upon review, we affirm the district court's judgment because Robinson has waived appellate review of his claims by not filing specific objections to the magistrate judge's report. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Willis v. Sullivan, 931 F.2d 390, 400-01 (6th Cir. 1991). Moreover, this case does not fit within the narrow waiver exception of Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir. 1987), as no extenuating circumstances exist and Robinson's motion to vacate does indeed constitute an abuse of the writ because Robinson without good excuse failed to present his claim in his original motion. See Rule 9(b), Rules Governing Section 2255 Proceedings.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.