Atkins v. Curtin

Filing 12

ORDER Adopting Report and Recommendation 11 denying the Petition for Writ of Habeas Corpus, and Denying a Certificate of Appealability. Signed by District Judge David M. Lawson. (PMil)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JAMAL ATKINS, Petitioner, v. MARY BERGHUIS, Respondent. __________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, AND DENYING A CERTIFICATE OF APPEALABILITY Presently before the Court is the report issued on May 21, 2010 by Magistrate Judge Paul J. Komives pursuant to 28 U.S.C. § 636(b). Judge Komives recommends that this Court grant the respondent's motion for summary judgment, deny the petitioner's petition for a writ of habeas corpus and deny the petitioner a certificate of appealability because the petition is barred by the one year statute of limitations for filing habeas petitions in 28 U.S.C. § 2244(d). Although the magistrate judge's report explicitly stated that the parties to this action may object to and seek review of the recommendation within fourteen days of service of the report, no objections have been filed. The parties' failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the magistrate judge's report releases the Court from its duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court agrees with the findings and conclusions of the Magistrate Judge. Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation [dkt # 11] is ADOPTED. Case No. 09-10711 Honorable David M. Lawson Magistrate Judge Paul J. Komives

It is further ORDERED that the respondent's motion for summary judgment [dkt. # 6] is GRANTED. It is further ORDERED that the petitioner's petition for a writ of habeas corpus [dkt. # 1] is DENIED. It is further ORDERED that the certificate of appealability is DENIED. s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: June 15, 2010

PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on June 15, 2010. s/Teresa Scott-Feijoo TERESA SCOTT-FEIJOO

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