Clarence Erwin Copeland v. H. Gary Wells, Warden , 865 F.2d 257 ( 1988 )

865 F.2d 257

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Clarence Erwin COPELAND, Petitioner-Appellant,
v.
H. Gary WELLS, Warden, Respondent-Appellee.

No. 88-1719.

United States Court of Appeals, Sixth Circuit.

Dec. 8, 1988.

Before KEITH, KENNEDY and MILBURN, Circuit Judges.

ORDER

1

Clarence Erwin Copeland, proceeding pro se, appeals the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

The case was assigned to a magistrate who recommended denying Copeland's petition in accordance with Rose v. Lundy, 455 U.S. 509 (1982), for failure to exhaust two of his four allegations of error. Copeland failed to respond within ten days of receipt of the magistrate's report as required by 28 U.S.C. Sec. 636(b)(1)(C). Instead, Copeland made an untimely motion for an extension of time in which to respond. The district court denied the motion and subsequently approved and adopted the magistrate's report because Copeland made no objections thereto within the time required by law.

3

Upon review, we find no error in the district court's judgment. A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal pursuant to United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). See also Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed. of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Furthermore, the record reveals no exceptional circumstances warranting an exception to the rule in the "interests of justice." See Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987).

4

Accordingly, the judgment of the district court is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.