govinfo:USCOURTS-kyed-5_06-cr-00183-4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CRIMINAL ACTION NO. 06-183-KSF
UNITED STATES OF AMERICA PLAINTIFF
v. OPINION & ORDER
WILLIAM COOK DEFENDANT
* * * * * * * * * *
This matter is currently before the Court upon the motion filed by the defendant, William
Cook, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, alleging that this Court erred
in failing to provide him with an evidentiary hearing on his prior motions to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 [DE #99].  Consistent with local practice, this matter was
referred to the Magistrate Judge.
On December 17, 2013, United States Magistrate Judge Robert E. Wier filed his
Recommended Disposition [DE #107] which construed Cook’s Rule 60(b) motion as a successive
§ 2255 motion.  According to Magistrate Judge Wier, although Cook’s motion is styled as a motion
attacking the integrity of the § 2255 proceedings, it actually is an attack on the merits of this Court’s
prior decisions denying § 2255 relief.  Relying on Gonzalez v. Crosby, 125 S.Ct. 2641, 2646-48
(2005), Magistrate Judge Wier concluded that because Cook is challenging this Court’s previous
resolution of a claim on the merits, it must be treated as a second or successive habeas application. 
See also In re Nailor, 487 F.3d 1018, 1021 (6th Cir. 2007)(applying the reasoning in Gonzalez to
§ 2255 motions).  Because Cook has not received the requisite authorization for such a motion from
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the Sixth Circuit, Magistrate Judge Wier recommends that this Court transfer his motion to the Sixth
Circuit pursuant to 28 U.S.C. § 1631.  See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
Neither party has filed objections to Magistrate Judge Wier’s recommendation and the time
for filing objections has expired.  Although this Court must make a de novo determination of those
portions of the Magistrate Judge’s recommendation to which 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 with the Court to a Magistrate Judge’s proposed findings of fact and
recommendation waives the right to appeal.  See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th
Cir. 1986).  Nevertheless, the Court, having examined the record, is in agreement with the Magistrate
Judge’s Recommended Disposition.
Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS
that:
(1) the Magistrate Judge’s Recommended Disposition [DE #107] is
ADOPTED as and for the opinion of the Court; and
(2) Cook’s motion [DE #99] is TRANSFERRED to the Sixth Circuit
Court of Appeals pursuant to 28 U.S.C. § 1631 on the grounds that
his construed 28 U.S.C. § 2255 motion is second or successive.
This January 16, 2014.
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