Edgar Gomez-vigil, Petitioner-appellant, v. United States of America, Respondent-appellee, 977 F.2d 581 (6th Cir. 1992)

ORDER

Edgar Gomez-Vigil appeals a district court order dismissing his 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).

In 1986, Gomez-Vigil was found guilty of conspiracy to distribute cocaine, distribution of cocaine, and distribution of marijuana and was sentenced to thirteen years imprisonment. This court affirmed his conviction and sentence on direct appeal. Gomez-Vigil then filed a § 2255 motion which alleged that he was improperly convicted. In his motion, Gomez-Vigil asserted that he had a limited understanding of English and that the trial judge (Judge Newblatt) had told the jury that he knew Gomez-Vigil was guilty. The district court denied this § 2255 motion.

The government then indicted Gomez-Vigil for the alleged perjured statements in his § 2255 motion that he had a limited understanding of English and that Judge Newblatt had told the jury he was guilty. Gomez-Vigil was found guilty of perjury and Judge Suhrheinrich sentenced him to twenty-four months imprisonment. On direct appeal, this court affirmed Gomez-Vigil's conviction and sentence. United States v. Gomez-Vigil, 929 F.2d 254 (6th Cir. 1991).

Gomez-Vigil then filed his present § 2255 motion to vacate, alleging that he received ineffective assistance of counsel at his perjury trial. The magistrate judge's report recommended denying Gomez-Vigil's motion to vacate. Gomez-Vigil did not file objections to the magistrate judge's report. The district court subsequently adopted this report and dismissed the case. Gomez-Vigil has filed a timely appeal. In his brief, he requests the appointment of counsel and transcript at government expense.

Initially, we note that Gomez-Vigil did not file objections to the magistrate judge's report and recommendation. Therefore, he has waived his right to appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).

Nonetheless, we determine that the district court properly denied Gomez-Vigil's motion to vacate. Gomez-Vigil has not shown a fundamental defect in the proceedings that inherently resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam).

Accordingly, we affirm the judgment for the reasons set forth in the magistrate judge's report and recommendation filed on December 11, 1991, as adopted by the district court in its order filed on May 26, 1992. Rule 9(b) (3), Rules of the Sixth Circuit.