Eva Gibson, Petitioner-appellant, v. United States of America, Respondent-appellee, 959 F.2d 234 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 959 F.2d 234 (6th Cir. 1992)

April 2, 1992


Before KEITH and SILER, Circuit Judges, and COHN, District Judge.* 

ORDER

Eva Gibson appeals a district court order denying her motion to vacate filed pursuant to 28 U.S.C. § 2255. 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). Counsel for both parties have waived oral argument.

In 1989, Gibson pleaded guilty to harboring a person to prevent his arrest in violation of 18 U.S.C. § 1071. Gibson was sentenced to five years imprisonment. She did not file a direct appeal from her conviction or sentence. She subsequently filed the present motion to vacate pursuant to 28 U.S.C. § 2255. In her motion, Gibson claimed that: 1) the district court improperly calculated her base offense level under the sentencing guidelines; and 2) the district court improperly failed to award her a reduction in her base offense level for being a minor or minimal participant in the offense. The district court adopted the magistrate's report and recommendation and denied Gibson's motion. Gibson has filed a timely appeal.

Upon review, we note that Gibson failed to object to the magistrate's determination that Gibson waived her claims by not raising these issues at sentencing or filing a direct appeal. Although Gibson now argues on appeal that cause and prejudice exist for not previously raising these issues, the failure to object to the magistrate's determination waives her right to appeal this issue. Crum v. Sullivan, 921 F.2d 642, 645 & n. 1 (6th Cir. 1990); Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991). Nonetheless, the court concludes that cause and prejudice do not exist to excuse Gibson's failure to raise these issues previously, and that she has, therefore, waived her right to review of the claims. United States v. Frady, 456 U.S. 152, 167-68 (1982).

Accordingly, we affirm the judgment for the reasons set forth in the district court's order filed on August 9, 1991 and the magistrate's report and recommendation filed on May 16, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation