Unpublished Dispositiondouglas G. Brown, Petitioner-appellant, v. John Gluch, Respondent-appellee, 924 F.2d 1057 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1057 (6th Cir. 1991) Jan. 30, 1991

Before KEITH and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


Douglas Brown appeals the district court's order denying his application for a writ of habeas corpus. Because the appellant waived his right to appeal by filing his objections to the magistrate's report and recommendation late, we dismiss Brown's appeal.

The petitioner's action in district court was referred to a magistrate who recommended that Brown's application for a writ of habeas corpus be denied. In his report and recommendation, the magistrate stated that objections to the report had to be filed within ten days to protect the parties' right to appeal:

The parties are hereby informed that objections may be filed to this Report and Recommendation within ten days of receipt of a copy thereof as provided for in 28 U.S.C. [Sec. 636](b) (1) (C) and that failure to file objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981) states that "a party shall file objections with the district court or else waive right to appeal." See Fed. R. Civ. P. 72(b); Local Sub-Rule C-4(b).

Magistrate's January 23, 1990 Report and Recommendation at 4-5. Brown did not file objections to the magistrate's report until February 12, 1990, three days after the district court judge had issued his order adopting the magistrate's report and recommendation:

United States Magistrate Komives having filed a Report and Recommendation that this Court deny petitioner's application for writ of habeas corpus and no objections having been received by this Court as of this date;

IT IS HEREBY ORDERED that the Magistrate's Report and Recommendation is adopted by this Court, and

IT IS FURTHER ORDERED that the petition for habeas corpus is DENIED.

District Court's February 9, 1990 Order Adopting Magistrate's Report and Recommendation.

This court has repeatedly held that the failure to file timely objections to a magistrate's report and recommendation results in the waiver of the right to appeal a subsequent order of the district court adopting the magistrate's report. Ivey v. Wilson, 832 F.2d 950, 957 (6th Cir. 1987); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986); Thomas v. Arn, 728 F.2d 813, 814-15 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985).

In Thomas v. Arn, the United States Supreme Court noted that " [t]he Sixth Circuit's rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing." 474 U.S. at 147-48. Because Douglas Brown failed to file timely objections to the magistrate's report and recommendation, Brown waived his right to appeal the district court's order.

For the aforementioned reasons, Brown's appeal is DISMISSED.