Miller v. USA

Filing 1

MEMORANDUM OPINION & ORDER: 1) Magistrate Judge's Recommended Disposition is ADOPTED and INCORPORATED by reference; 2) Movant/Dft's motion to vacate is DENIED and his claims are DISMISSED w/ prejudice; 3) A COA shall not issue because the Movant/Dft has not made a substantial showing of the denial of any substantive constitutional right; and 4) Judgment will be entered contemporaneously w/ this MOO in favor of Respondent/Plff.. Signed by Judge Danny C. Reeves on 12/7/2010.(JMB)cc: COR, Larry Ray Miller

Miller v. USA

Doc. 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION (at London) UNITED STATES OF AMERICA, Plaintiff/Respondent, V. LARRY RAY MILLER, Movant/Defendant. ) ) ) ) ) ) ) ) ) )

Criminal Action No. 6: 05-64-DCR Civil Action No. 6: 10-7107-DCR MEMORANDUM OPINION AND ORDER

*** *** *** *** This matter is before the Court for consideration of Movant/Defendant Larry Ray Miller's pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 50] Consistent with local practice, this matter was referred to United States Magistrate Judge Hanly A. Ingram for consideration pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge filed his Recommended Disposition on November 17, 2010. [Record No. 55] Based on his review of the record and the applicable law governing the motion, the Magistrate Judge recommended that Miller's motion be denied. Neither the Movant/Defendant nor the

Respondent/Plaintiff have filed timely objections to the Magistrate Judge's Recommended Disposition. Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual
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or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file objections to a Magistrate Judge's proposed findings of fact and recommendation waives the right to appeal. See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Nevertheless, having examined the record and having made a de novo determination, the Court is in agreement with the Magistrate Judge's Recommended Disposition. As the Magistrate Judge correctly noted, Miller's § 2255 motion is time-barred and he has not established that equitable tolling applies to his claims. Accordingly, it is hereby ORDERED as follows: 1. The Magistrate Judge's Recommended Disposition [Record No. 55] is

ADOPTED and INCORPORATED by reference; 2. The Movant/Defendant's motion [Record No.50] is DENIED and his claims are

DISMISSED with prejudice; 3. A Certificate of Appealability shall not issue because the Movant/Defendant has

not made a substantial showing of the denial of any substantive constitutional right; 4. Judgment will be entered contemporaneously with this Memorandum Opinion and

Order in favor of the Respondent/Plaintiff. This 7th day of December, 2010.

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