Opinion
No.: 3:10-CR-88-TAV-HBG No.: 3:12-CV-49-TAV
11-09-2015
UNITED STATES OF AMERICA, Plaintiff, v. DAVID CARROLL LIVINGSTON, Defendant.
MEMORANDUM
This criminal case is before the Court on the Report and Recommendation entered by United States Magistrate Judge H. Bruce Guyton on October 7, 2015 (the "R&R") [Doc. 43]. In the R&R, Magistrate Judge Guyton finds that Petitioner has shown by a preponderance of the evidence that he asked his attorney to file a direct appeal of his sentence and recommends that his motion to vacate, set aside, or correct his sentence [Doc. 19] be granted in part and that Petitioner be permitted to bring a delayed appeal. There have been no timely objections to the R&R, and enough time has passed since the filing of the R&R to treat any objections as having been waived. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Fed. R. Crim. P. 51.
After a careful review of the R&R, the Court is in agreement with Magistrate Judge Guyton's analysis and recommendations, which the Court adopts and incorporates into its ruling. Therefore, the Court will ACCEPT IN WHOLE the R&R [Doc. 43]. Petitioner's motion will be GRANTED in part [Doc. 19] to the extent set forth in the R&R. In addition, a certificate of appealability shall issue with respect to Petitioner's claim that his criminal history category was improperly calculated.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE