Filed: Jun. 13, 2013
Latest Update: Jun. 13, 2013
Summary: MEMORANDUM OPINION AND ORDER DANNY C. REEVES, District Judge. This matter is pending for consideration of the Report and Recommendation of United States Magistrate Judge Candace J. Smith, issued May 22, 2013. [Record No. 43] In relevant part, the Magistrate Judge recommends that Defendant/Movant Bobby J. Jones' motion to vacate, set aside, or correct his sentence [Record No. 33] be denied. Having considered this matter, the Court will adopt the Magistrate Judge's Report and Recommendation and
Summary: MEMORANDUM OPINION AND ORDER DANNY C. REEVES, District Judge. This matter is pending for consideration of the Report and Recommendation of United States Magistrate Judge Candace J. Smith, issued May 22, 2013. [Record No. 43] In relevant part, the Magistrate Judge recommends that Defendant/Movant Bobby J. Jones' motion to vacate, set aside, or correct his sentence [Record No. 33] be denied. Having considered this matter, the Court will adopt the Magistrate Judge's Report and Recommendation and d..
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MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of the Report and Recommendation of United States Magistrate Judge Candace J. Smith, issued May 22, 2013. [Record No. 43] In relevant part, the Magistrate Judge recommends that Defendant/Movant Bobby J. Jones' motion to vacate, set aside, or correct his sentence [Record No. 33] be denied. Having considered this matter, the Court will adopt the Magistrate Judge's Report and Recommendation and dismiss Jones' habeas motion.
While this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which an 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 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 United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008); 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 agrees with the Magistrate Judge's recommendations concerning the relief requested by Jones.1
As outlined in the Report and Recommendation, Jones pleaded guilty to being a felon in possession of a firearm on October 20, 2006. Because he had been convicted previously of: (1) wanton endangerment in the first degree; (2) escape in the second degree on two occasions; and (3) assault in the first degree, Jones was sentenced to an enhanced term of incarceration of 180 months under the Armed Career Criminal Act. Jones appealed his sentence but was unsuccessful. And because he did not seek review by the United States Supreme Court, his sentence became final on March 6, 2008.
Jones' present motion was filed on February 2, 2013. He contends that he no longer qualifies as an armed career criminal under Begay v. United States, 553 U.S. 137 (2008), and that the holding in Begay applies retroactively under Jones v. United States, 689 F.3d 621 (6th Cir. 2012). However, as correctly noted in the Report and Recommendation of Magistrate Judge Smith, even if Jones' assertions are correct, his claims are nevertheless time-barred. The Antiterrorism and Effective Death Penalty Act ("ADEPA") contains a one-year statute of limitations to motions filed under 28 U.S.C. § 2255 under the circumstances presented here. See 28 U.S.C. § 2255(f)(3). And as the Supreme Court has indicated, the one-year limitations period commences on the date on which that Court recognizes the new right — not the date on which the right is held to be retroactive. Dodd v. United States, 545 U.S. 353, 357 (2005). Thus, the key date here is the date on which Begay was decided (i.e., April 16, 2008) rather than date on which Jones was issued by the Sixth Circuit (i.e., July 31, 2012). Therefore, the request for habeas relief was filed nearly four years too late.2
And as Magistrate Judge Smith has outlined, Jones has not demonstrated any basis for equitable tolling of the statute of limitations. [Record No. 43, pp. 6-7] Not only has he failed to argue that he is entitled to equitable tolling, an independent review of the record does not indicate a basis for such an argument.
Finally, the Court determines that a Certificate of Appealability should not issue regarding the issues raised in Jones' habeas motion.3 Accordingly, it is hereby
ORDERED as follows:
1. The Report and Recommendation of United States Magistrate Judge Candace J. Smith [Record No. 43] is ADOPTED and INCORPORATED by reference.
2. The motion to vacate, set aside, or correct Defendant/Movant Bobby J. Jones' Sentence [Record No. 33] is DENIED and this matter is DISMISSED from the Court's docket.
3. The Court declines to issue a Certificate of Appealability regarding any issue raised in Jones' motion for habeas relief.
4. A final and appealable Judgment will be issued this date.
