frank-lemaster-v-warden-indiana-state-penitentiary-david-armstrong , 860 F.2d 1079 ( 1988 )

860 F.2d 1079

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Frank LEMASTER, Petitioner-Appellant
v.
WARDEN, INDIANA STATE PENITENTIARY; David Armstrong,
Attorney General of the Commonwealth of Kentucky;
Kentucky Department of Corrections,
Respondents- Appellees.

No. 88-5244.

United States Court of Appeals, Sixth Circuit.

Oct. 19, 1988.

1

Before MERRITT and RYAN, Circuit Judges, and JOHN W. POTTER, District Judge.*

ORDER

2

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Petitioner filed this action for habeas corpus relief under 28 U.S.C. Sec. 2254 attacking the constitutionality of a 1957 armed robbery conviction. The matter was referred to a magistrate who recommended the petition be dismissed. The district court adopted the recommendation, petitioner having failed to file objections, and this appeal followed. On appeal the parties have briefed the issues, petitioner proceeding pro se.

4

Upon consideration, we hold petitioner waived appellate review by his failure to file objections to the magistrate's report and recommendation after being advised of the consequences of his inaction. Thomas v. Arn, 474 U.S. 140 (1985).

5

Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable John W. Potter, U.S. District Judge for the Northern District of Ohio, sitting by designation