United States District Court, E.D. Michigan, Northern Division
Magistrate Judge, Patricia T. Morris
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PETITIONER'S MOTIONS TO VACATE SENTENCE UNDER 28 U.S.C.
§ 2255 AND DENYING CERTIFICATION OF APPEALABILITY AND
FOR LEAVE TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
December 17, 2013, Defendant Bruce Alan Edward was found
guilty of three counts involving the sale of counterfeit
copies of copyrighted Microsoft Office 2003 Professional
software. ECF No. 45. He was sentenced to 36 months
imprisonment. ECF No. 59. On June 10, 2015, Edward filed a
motion to vacate his sentence under 28 U.S.C. § 2255.
ECF No. 60. On August 14, 2015, Edward filed a motion to
amend his original motion and dismiss the claims in his
original complaint. ECF No. 69. The Government then filed a
motion to dismiss. ECF No. 71. Those motions were referred to
Magistrate Judge Patricia T. Morris. On October 13, 2015,
Judge Morris issued a report recommending that Edward's
motion to supplement be granted in part and directed Edward
to file an amended motion to vacate “on the ground that
counsel failed to investigate and introduce evidence
regarding the breakdown of the restitution amount.” ECF
No. 73 at 17. Judge Morris found that the other two claims
Edward advanced in the motion to supplement were untimely. On
November 3, 2015, Edward filed an amended motion to vacate
his sentence. ECF No. 75. Edward separately objected to the
conclusion that his claims were untimely because he was
actually innocent. ECF No. 76. The Government also objected,
arguing that Edward's motion to amend should be denied
because the claim asserted therein was also untimely. ECF No.
19, 2016, the Court issued an order adopting in part the
report and recommendation, overruling Edward's
objections, sustaining the Government's objections,
granting the motion to dismiss, and striking portions of the
amended motion to vacate Edward filed after the report and
recommendation was issued. ECF No. 78. In her original report
and recommendation, Judge Morris declined to review arguments
which Edward advanced in his original motion but not his
proposed amended motion because Edward requested that his
previous claims be dismissed in the motion to amend. However,
because the Court denied Edward's motion to amend to the
extent he sought to add new claims, the claims in
Edward's original motion are still outstanding. On
January 26, 2017, Judge Morris issued a report finding that
Edward's remaining arguments were without merit and
recommending that his motions to vacate be denied.
January 26, 2017, Edward was mailed service of the report and
recommendation to the address he had previously provided the
Court. Immediately after he filed his initial motion to
vacate, Edward was informed that it was his responsibility to
notify the Court of address changes, pursuant to Local Rule
11.2. That rule provides that “[t]he failure to file
promptly current contact information may subject that person
or party to appropriate sanctions, which may include
dismissal, default judgment, and costs.” Id.
Despite that warning, Edward did not notify the Court of his
change in address. Edward did not receive service of the
report and recommendation within the time period for
objections, but the fault for that lies with Edward.
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,
neither Petitioner nor Respondent filed any objections. The
election not to file objections to the Magistrate Judge's
report releases the Court from its duty to independently
review the record. Thomas v. Arn, 474 U.S. 140, 149
(1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
the petitioner may appeal this Court's dispositive
decision, a certificate of appealability must be issued.
See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P.
22(b). A certificate of appealability may be issued
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a court rejects a habeas claim on the
merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find
the district court's assessment of the constitutional
claim debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude
the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying that standard, a district
court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying
merit of the petitioner's claims. Id. at 336-37.
“The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. § 2254.
considered the matter, the Court concludes that the
petitioner has failed to make a substantial showing of the
denial of a constitutional right. Accordingly, a certificate
of appealability is not warranted in this case. The Court
further concludes that Petitioner should not be granted leave
to proceed in forma pauperis on appeal, as any
appeal would be frivolous. See Fed. R. App. P.
it is ORDERED that the magistrate
judge's report and recommendation, ECF No. 80, is
further ORDERED that Defendant Edwards's
motions to vacate, ECF No. 60, 75, are
further ORDERED that a certificate of
appealability is DENIED.
further ORDERED that leave to proceed in