Terry Sutton, Petitioner-appellant, v. United States of America, Respondent-appellee, 68 F.3d 475 (6th Cir. 1995)

E.D. Mich., No. 94-74201; Lawrence P. Zatkoff, District Judge.

E.D. Mich.

AFFIRMED.

Before: KENNEDY and MOORE, Circuit Judges, and JOHNSTONE, District Judge.^* 

ORDER

Terry Sutton appeals a district court order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The 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 1991, Sutton pleaded guilty to conspiracy to possess with intent to distribute cocaine and the district court sentenced him to 121 months of imprisonment. Sutton did not file a direct appeal from his conviction and sentence.

Sutton filed a motion to vacate sentence, alleging that he received ineffective assistance of counsel because counsel did not argue that he should receive a reduction in his guideline range for being a minor participant in the conspiracy and did not challenge the amount of cocaine used in calculating Sutton's relevant conduct. The magistrate judge issued a report recommending that Sutton's motion be dismissed as meritless. Although Sutton filed a notice of appeal from the magistrate judge's report, he did not file objections to the magistrate judge's report. The district court adopted the report and dismissed the case. Sutton has filed a timely appeal and requests the appointment of counsel.

Upon review, we conclude that Sutton has waived review of the district court's judgment. Despite being advised to do so, Sutton did not file objections to the magistrate judge's report and recommendation, thereby waiving his right to appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).

Accordingly, we deny Sutton's request for counsel and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.