Thomas D. Cress, Petitioner-appellant, v. Henry Grayson, Warden, Respondent-appellee, 955 F.2d 44 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 955 F.2d 44 (6th Cir. 1992)

Feb. 20, 1992

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


Thomas D. Cress, a pro se Michigan prisoner, appeals the district court's judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This 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).

A jury found Cress guilty of first degree murder for which he received a sentence of life imprisonment. In his state appeals as well as in his petition before the district court, Cress raised three grounds for relief: (1) the prosecutor should not have been permitted to bolster the credibility of three crucial witnesses by introducing their prior statements; (2) the trial court abused its discretion by admitting photographs of the victim which excited the jury's passion; and (3) the trial court abused its discretion by denying the defendant's motion for a corporeal line-up prior to the in-court identification testimony of a belatedly endorsed prosecution witness.

A magistrate judge recommended dismissing the petition as meritless. Cress moved for an extension of 180 days to respond to the magistrate judge's report. The district court adopted the magistrate judge's recommendation without ruling on Cress's motion. In its order the district court noted that no objections had been filed.

On appeal, Cress reasserts the issues raised in his petition. He does not contest the district court's failure to grant his request for an extension of time and he has proffered no reasons explaining why he failed to file timely objections. In his timely appeal, Cress has moved for in forma pauperis status, for the appointment of counsel, and for a free transcript of his trial. Appellee has moved to dismiss the appeal due to Cress's failure to object to the magistrate judge's report.

Although Cress did not timely file objections to the magistrate judge's recommendation after being advised to do so, he did ask for an extension of time and did not just ignore the requirement that he file objections. Accordingly he has not waived his right to appeal the issues contained in his petition. Upon review of the record, however we find no error in the magistrate judge's report.

Accordingly, we grant Cress's motion to proceed in forma pauperis, deny his motions for appointment of counsel and for a free transcript of his trial, deny appellee's motion to dismiss as not authorized under Sixth Circuit Rules, and affirm the judgment of the district court. Rule 9(b) (3), Rules of the Sixth Circuit.