Stanley Jerome Brown, Petitioner-appellant, v. William Abshire, Respondent-appellee, 810 F.2d 199 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 810 F.2d 199 (6th Cir. 1986)

Nov. 6, 1986


Before KENNEDY and MILBURN, Circuit Judges and BROWN, Senior Circuit Judge.


ORDER

Stanley Jerome Brown timely filed this pro se appeal from the November 25, 1985 Order of the district court adopting the Report and Recommendation of the Magistrate and dismissing his petition for writ of habeas corpus. This case has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs of the parties, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Brown, a Michigan state prisoner, brought this action, pursuant to 28 U.S.C. § 2254, alleging that his armed robbery jury conviction was obtained by use of evidence gained as a result of an illegal search and seizure. The district court referred the matter to a Magistrate who filed a Report and Recommendation on October 11, 1985. The Magistrate recommended that the petition be denied on the ground that Brown had a full and fair opportunity to litigate his Fourth Amendment claim in the state's trial and appellate courts and, therefore, he was not entitled to federal habeas corpus relief (citing Stone v. Powell, 428 U.S. 465 (1976)). The Clerk of Court sent a copy of the Magistrate's Report to Brown along with a letter (dated October 15, 1985) advising him that he had 10 days within which to object to the Report or his right to appeal would be waived. No objections were filed. Noting the failure to file objections, the district court adopted the Magistrate's Report on November 25, 1985, and dismissed Brown's petition. Brown filed his notice of appeal and application for certificate of probable cause on December 12, 1985. The district court granted a certificate of probable cause on December 17, 1985.

A party failing to file objections to a Magistrate's Report and Recommendation waives the right to appeal from the Order of the district court. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This rule was recently upheld by the Supreme Court in Thomas v. Arn, --- U.S. ----, 106 S. Ct. 466 (1985). Brown failed to object to the Magistrate's Report, although he was notified of this requirement and of the consequences of his failure to object. Therefore, his right to appeal the dismissal of his habeas corpus petition was waived.

Accordingly, it is ORDERED that the judgment of the district court is affirmed. Sixth Circuit Rule 9(d) (3).